DCIT-7(3), Mumbai V. M/S TRISHUL REALTORS TAX-CC7(3), Mumbai

MA 236/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6283 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Tax effect
• Section: 37(1); 268A; 6

Judgement Text

MA NO 236/MUM/2020 IN ITA NO. 4040/MUM/2019 ASSESSMENT YEAR: 2009 - 10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO. 236/MUM/2020 ARISING OUT OF ITA NO. 4040/MUM/2019 ASSESSMENT YEAR: 2009 - 10 DEPUTY COMMISSIONER OF INCOME TAX .APPLICANT CENTRAL CIRCLE 7(3) MUMBAI VS. M/S. TRISHUL REALTORS RESPONDENT OFFICE NO. 1, 2 ND FLOOR, 3 PATEL BHUWAN,29, VIJAY WADI, DR. NN SHAH LANE CHIRA BAZAR, MUMBAI - 400 002 [PAN: AAEFT 5442 M] APPEARANCES BY SUNIL DESHPANDE FOR THE APPLICANT RUSHABH MEHTA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JULY 13, 2021 DA TE OF PRONOUNCEMENT : JULY 20 , 2021 ORDER PER BENCH: - 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER SEEKS THE RECALL OF OUR ORDER DATED 21.08.2019 DISMISSING THE APPEAL AN ACCOUNT OF LOW TAX EFFECT UNDER CBDT CIRCULAR 17/2019 DATED 08.08.2019. 2. A SHORT POINT ON WHICH THE ORDER IT SOUGHT TO BE RECALLED IS ASSESSING OFFICER RELIANCE ON CIRCULAR NO. 23/2019 DATED 06.09.2019. AS IS EVIDENT FROM THE FOLLOWING OBSERVATIONS IN THE PRESENT MISCELLANEOUS APPLICATION: - 3.1 THE REVENUE APPEALED AGAINST THE DECISION OF THE LD.CIT(A) ON THE ISSUE OF DELETION OF ADDITION OF RS.1,00,00,000/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 AND DELETION OF RS.5,63,750/ - ON ACCOUNT OF DISALLOWANCE OF INTEREST EXPENDITURE U/S MA NO 236/MUM/2020 IN ITA NO. 4040/MUM/2019 ASSESSMENT YEAR: 2009 - 10 PAGE 2 OF 4 37(1) OF T HE ACT FOR A.Y. 2012 - 13, VIDE ITA NO. 2915/MUM/2019. THE HON'BLE ITAT, VIDE ORDER DATED 21.08.2019, DISMISSED THE APPEAL OF THE REVENUE CONSIDERING THE LOW DISPUTED TAX EFFECT INVOLVED IN THE APPEAL WITHOUT GOING IN TO THE MERIT OF THE APPEAL BY APPLYING C BDT CIRCULAR NO. 17/2019 DATED 08.08.2019. 3.2 THE HONBLE ITAT, HAS ERRED IN DISMISSING THE APPEAL OF THE REVENUE WITHOUT CONSIDERING THE FACT THAT THIS CASE PERTAINS TO ORGANISED TAX EVASION ACTIVITY AS THE ASSESSEE AVAILED UNSECURED LOANS BY WAY OF ACC OMMODATION ENTRIES FROM VARIOUS PARTIES, WHICH FALLS UNDER EXCEPTION CLAUSE IN PARA 3 OF THE CIRCULAR NO. 23 OF 2019 [F.NO. 279/MISC./M - 93/2018 - ITJ(PT)] DATED 06.09.2021 ADDING EXCEPTIONS TO PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018, AS REPROD UCED BELOW: 3. IN THIS CONTEXT, BOARD HAS DECIDED THAT NOTWITHSTANDING ANYTHING CONTAINED IN ANY CIRCULAR ISSUED U/S. 268A SPECIFYING MONETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX APPELLATE TRIBUNAL (ITAT), HIGH COURTS AND SLPS/APP EALS BEFORE SUPREME COURT, APPEALS MAY BE FILED ON MERIT AS AN EXCEPTION TO SAID CIRCULAR, WHERE BOARD, BY WAY OF SPECIAL ORDER DIRECT FILING OF APPEAL ON MERIT IN CASES INVOLVED IN ORGANIZED TAX EVASION ACTIVITY. 3.3 IN VIEW OF THE ABOVE MENTIONED FACTS, DISMISSING THE APPEAL OF THE REVENUE BY APPLYING CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019 ON GROUND OF LOW TAX EFFECT INVOLVED IN THE APPEAL BY THE HON'BLE ITAT, IS NOT CORRECT AS THIS CASE FALLS UNDER EXCEPTION GIVE N IN THE ABOVE REFERRED CIRCULAR. AS THIS MISTAKE APPARENT FROM RECORD AND HENCE THE ORDER PASSED ON 21.08.2019 IS LIABLE TO BE RECALLED. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. WE FIND THAT THE CBDT INSTRUCTIONS WHICH ARE RELIED UPON BY THE APPLICANT ASSESSING OFFICER AS ALSO THE LEARNED DEPARTMENT REPRESENTATIVE WERE ISSUED ON 06.09.2019 WHEREAS THE TRIBUNALS ORDER WAS PASSED ON 21.08 .2019. OBVIOUSLY, THEREFORE, AS ON THE POINT OF TIME WHEN THE TRIBUNAL PASSED THE SAID ORDER, THE CBDT INSTRUCTIONS RELIED UPON WERE NOT AN EXISTENCE. IN THIS VIEW OF THE MATTER, WE SEE NO MISTAKE ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL. WE ACCORDING LY, REJECT THE APPLICATION AS DEVOID OF LEGALLY SUSTAINABLE MERITS. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 20 TH DAY OF JULY, 2021. SD/ - SD/ - JUSTICE P.P. BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED THE 20 TH , 2021 MA NO 236/MUM/2020 IN ITA NO. 4040/MUM/2019 ASSESSMENT YEAR: 2009 - 10 PAGE 3 OF 4 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI MA NO 236/MUM/2020 IN ITA NO. 4040/MUM/2019 ASSESSMENT YEAR: 2009 - 10 PAGE 4 OF 4 SR. NO DESCRIPTION DATE INITIAL 1. DRAFT PREPARED BY MYSELF ON 2 DRAFT PLACED BEFORE AUTHOR ON 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR PS 6 KEPT FOR PRONOUNCEMENT ON 7 FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH