ACIT- 25(3), MUMBAI V. M. M. CORPORATION, MUMBAI

MA 24/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7471 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 14-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: M H PATEL
• Keywords: Search and seizure; Accommodation entries; Tax effect
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 24/MUM/2019 (ITA NO. 2052/MUM/2018) ASSESSMENT YEAR: 2013 - 14 ASSISTANT COMMISSIONER OF INCOME TAX - 25(3), ROOM NO. 601, 6 TH FLOOR, C - 10, PRATYAKSHAKARBHAVAN, BANDRAKURLA COMPLEX, BANDRA (EAST), MUMBAI - 400051. VS. M/S M.M. CORPORATION, 402/B, BAJAJ VIEW, BAJAJ ROAD, VILE PARLE (W), MUMBAI - 400056. PAN NO. AAAFM1898E APPELLANT RESPONDENT REVENUE BY : MR. CHAITANYA ANJARIA, DR ASSESSEE BY : MR. M.H. PATEL, AR DATE OF HEARING : 26/04/2019 DATE OF PRONOUNCEMENT : 23/07/2019 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 24.08.2018 PASSED BY THE ITAT H BENCH MUMBAI (ITA NO. 2052/MUM/2018 ) FOR THE ASSESSMENT YEAR (AY) 2013 - 14. 2. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT IN THE INSTANT CASE, THE ITAT HAS DISMISSED THE APPEAL FILED BY THE R EVENUE AS WITHDRAWN/NOT PRESSED AS THE TAX EFFECT INVOLVED IN THE APPEAL IS LESS M/S M.M. CORPORATION MA NO. 24/MUM/2019 2 THAN THE MONETARY LIMIT PRESCRIBED BY THE CBDT VIDE CIRCULAR NO. 3/2018. IT IS STATED BY HIM THAT THE TRIBUNAL HAS FURTHER CLARIFIED THAT IF THE R EVENUE FINDS THAT THE CASE IS COVERED BY ANY OF THE EXCEPTIONS PROVIDED IN PARA 10 OF THE SAID CIRCULAR, IT CAN APPROACH IT FOR RECALL OF THE ORDER AND RE - INSTITUTION OF THE APPEAL FOR ADJUDICATION ON MERITS. THE LD. DR FURTHER SUBMITS THAT THE ADDITION IN THIS CASE IS BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AND THEREFORE, THE CASE FALLS WITHIN THE EXCEPTIONS PROVIDED IN THE CBDT CIRCULAR NO. 3/2018 DATED 11.07.2018 AND SUBSEQUENT CLARIFICATION ISSUED BY CBDT DATED 20.08.2018. THUS IT IS STATED THAT THE TRIBUNAL MAY RECALL AND REINSTATE THE APPEAL FILED BY THE REVENUE FOR ADJUDICATION ON MERITS. 3. ON THE HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ABOVE MA IS TO BE EXAMINED AS PER CIRCULAR NO. 3/2018 DATED 11.07.2018 AND AMENDMENT TO PARA 10 OF THE SAID CIRCULAR ISSUED BY CBDT DATED 20.08.2018. 4. WE HAVE HEARD THE RIVAL SUB MISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE INSTANT CASE, A SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT, 1961 (THE A CT ) WAS CARRIED OUT BY THE REVENUE IN THE CASE OF SHRI PRAVEEN KUMAR JAIN GROUP. DURING THE COURSE OF SEARC H, IT WAS FOUND THAT SHRI PRAVEEN KUMAR JAIN WAS INDULGING IN PROVIDING ACCOMMODATION ENTRIES THROUGH ENTITIES OPERATED BY HIM. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) OBSERVED THAT THE ASSESSEE IS ONE OF THE BENEFICIARIES O F ACCOMMODATION ENTRIES PROVIDED BY SHRI JAIN IN THE FORM OF UNSECURED M/S M.M. CORPORATION MA NO. 24/MUM/2019 3 LOANS AMOUNTING TO RS.48,00,000/ - . THE AO HAS MADE INTER ALIA AN ADDITION OF RS.48,00,000/ - TO THE LOSS OF RS.26,21,205/ - SHOWN BY THE ASSESSEE. THE RELIANCE PLACED BY THE LD. DR IS O N PARA 10(E) OF THE A MENDMENT BROUGHT OUT BY CBDT DATED 20.08.2018, WHICH READS AS UNDER : (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). THERE IS NO DISPUTE THAT THE AO HAS MADE AN ADDITION OF RS.48,00,000/ - IN THE PRESENT CASE ON THE BASIS OF INFORMATION RECEIVED AS A RESULT OF SEARCH AND SEIZURE ACTION IN THE CASE OF SHRI PRAVEEN KUMAR JAIN GROUP CONDUCTED BY TH E INVESTIGATION WING , MUMBAI, WHICH IS A PART OF THE DEPARTMENT. THE SAID INFORMATION WAS NOT RECEIVED BY THE AO FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI) . THEREFO RE, THE PRESENT CASE DOES NOT FALL IN PARA 10 OF THE CIRCULAR NO. 2018 DATED 11.07.2018 ISSUED BY CBDT. 5. IN THE RESULT, THE MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/07/2019. SD/ - SD/ - (C.N. PRASAD) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 23/07/2019 RAHUL SHARMA, SR. P.S. M/S M.M. CORPORATION MA NO. 24/MUM/2019 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI