I.T.O. Ward 2(2)(3), Surat V. Smt. Mayuri Ashit Bookseller, Surat

MA 25/SRT/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9373 (ITAT-SURAT)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RECALLING OF
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO. 25/SRT/2019 IN ITA NO. 381/AHD/2017 FOR AY.2008-09 ( VIRTUAL HEARING) ITO WARD 2(2)(2), AAYAKAR BHAWAN, MAJURA GATE, SURAT VS SMT. MAYURI ASHIT BOOKSHELLER, 903, SHIVANJI APARTMENT , B/H CENTRE COURT HOTEL, PARLE POINT SURAT PAN : AKMPB 5479 N APPLICANT RESPONDEDNT REVENUE BY MISS ANUPMA SINGHLA SR. DR ASSESSEE BY SH. NISHIT SHAH AR DATE OF HEARING 01.01.2021 DATE OF PRONOUNCEMENT 01.01.2021 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATIONS (MA) IS FILED BY THE REVENUE FOR RECALLING OF THE ORDER DATED 23.08.2019 IN ITA NO. 381/AHD/2017. 2. THE LEARNED DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE SUBMITS THAT THE AFORESAID APPEAL OF THE REVENUE WAS DISMISSED BY TRIBUNAL IN ITS ORDER DATED 23 RD AUGUST 2019 BY TAKING VIEW THAT THE TAX EFFECT IN THE PRESENT APPEAL IS ONLY RS. 34,35,304/- WHICH IS LESS THAN THE MONETARY LIMIT OF RS. 50.00 LAKHS AS PER CIRCULAR NO. 19/2019 ISSUED BY CENTRAL BOARD OF DIRECT TAX (CBDT), FOR FILING APPEAL BEFORE TRIBUNAL. THE LD DR FOR THE REVENUE FURTHER SUBMITS THAT ON MA NO. 25/SRT/2020 IN ITA 381/SRT/2017 SMT. MAYURI ASHIT BOOKSHELLER , 2 VERIFICATION OF FACTS IT WAS REPORT THAT THE CASE FALLS IN EXCEPTION CLAUSE 10(E) OF CBDT CIRCULAR NO. 3/2018 DATED 20.08.2018208 AS THE ADDITION IN THE ASSESSMENT IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES I.E. SURAT MUNICIPAL CORPORATION (SMC), SURAT REGARDING NON-COMPULSORY ACQUISITION OF LAND IN VILLAGE DINDOLI, SURAT, IN TERM OF SECTION 77 & 78 OF GUJARAT TOWN PLANNING & DEVELOPMENT ACT AND NOT QUALIFYING FOR THE CLAIM OF EXEMPTION UNDER SECTION 10(37) OF INCOME TAX ACT. THE LD DR FOR THE REVENUE PRAYED FOR RECALL OF ORDER DATED 23.08.2019 AND TO FIX THE APPEAL FOR HEARING ON MERIT AFRESH. 3. ON THE OTHER HAND THE LEARNED AUTHORISED REPRESENTATIVE (AR) FOR THE ASSESSEE SUBMITS THAT NO INFORMATION IN THIS CASE IS RECEIVED FROM EXTERNAL SOURCES. INFORMATION WAS RECEIVED FROM THE OFFICE OF CHIEF COMMISSIONER OF INCOME TAX (CCIT), SURAT THAT SMC HAD PURCHASED THE LAND FROM LAND OWNERS AND BASED ON SUCH INFORMATION THE ADDITIONS WAS MADE BY ASSESSING OFFICER. THE OFFICE OF THE CCIT IS NOT THE EXTERNAL AGENCY. THE PLEA OF REVENUE CANNOT BE ACCEPTED AS PARA 10(E) OF CIRCULAR NO. 3/2018 CLEARLY STIPULATES THAT ADDITIONS SHOULD BE BASED ON THE INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCY SUCH AS CBI/ED/DRI/DG OF GST INTELLIGENCE. THUS, TWO CONDITIONS MUST BE FULFILLED THAT IS EXTERNAL SOURCES AND THAT AGENCY SHOULD BE LAW ENFORCEMENT AGENCY. THE CCIT MA NO. 25/SRT/2020 IN ITA 381/SRT/2017 SMT. MAYURI ASHIT BOOKSHELLER , 3 IS UNDER THE AEGIS OF CBDT AND CANNOT BE CONSIDERED AS EXTERNAL SOURCES. IN SUPPORT OF HIS SUBMISSIONS THE LD AR FOR THE ASSESSEE RELY ON THE DECISION OF MUMBAI TRIBUNAL IN ITO VS AMARCHAND P SHAH (2019) 111 TAXMANN.COM 385 (MUM-TRIB). 4. IN ALTERNATIVE SUBMISSIONS THE LD AR FOR THE ASSESSEE SUBMITS EVEN ON MERIT THE GROUNDS OF APPEAL RAISED BY THE REVENUE IS FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN ITO VS DEEPAK KALIDAS PAUWALA (ITA NO. 2685/AHD/2011) DATED 14/08/2016, WHICH HAS BEEN AFFIRMED BY GUJARAT HIGH COURT IN TAX APPEAL NO. 249 OF 2016 DATED 28.03.2016. IN THE SAID CASE THE LAND OF THE ASSESSEE WAS ALSO SITUATED IN THE SAME VILLAGE I.E. VILLAGE DINDOLI, WHICH WAS ACQUIRED SMC FOR SEWERAGE TREATMENT PLANT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND HAVE SEEN THE CONTENTS OF THE ORDER DATED 23RD AUGUST 2019. PERUSAL OF THE ORDER REVEALS THAT THE APPEAL OF THE REVENUE WAS DISMISSED DUE TO LOW TAX EFFECT IN VIEW OF CBDT CIRCULAR NO. 17/2019 AND THE REVENUE WAS GIVEN LIBERTY TO FILE APPLICATION FOR RECALLING THE ORDER, IF THE TAX EFFECT IS DISCOVERED TO BE MORE THAN RS. 50.00 LAKHS. THE TRIBUNAL IN THE ORDER HAS CLEARLY HELD THAT THE CASE DOES NOT FALLS IN EXCEPTION CLAUSE OF CBDT CIRCULAR NO. 3/2018. NOW, THE REVENUE HAS COME WITH THE PLEA THAT THE INFORMATION IN THIS CASE WAS RECEIVED FROM EXTERNAL MA NO. 25/SRT/2020 IN ITA 381/SRT/2017 SMT. MAYURI ASHIT BOOKSHELLER , 4 SOURCES THAT THE ASSESSEE SOLD HIS LAND TO SMC. WE HAVE NOTED THAT IN THE PRESENT CASE THE ASSESSING OFFICER REOPENED THE ASSESSMENT ON THE BASIS OF INFORMATION FROM CCIT SURAT THAT THE ASSESSEE WITH OTHER LAND OWNER HAD SOLD TO SMC FOR SEWERAGE TREATMENT PLANT. THE ASSESSING OFFICER MADE ADDITION OF LONG TERM CAPITAL GAIN. HOWEVER, ON APPEAL BEFORE LEARNED CIT(A) THE ADDITION OF LONG TERM CAPITAL GAIN WAS DELETED BY FOLLOWING THE DECISION OF TRIBUNAL IN DIPAK KALIDASS PAUWALA,( ITA NO. 2685/AHD/2011) ONE OF THE LAND OWNER OF THE SAME VICINITY. HOWEVER, WHEN THIS APPEAL CAME UP HEARING BEFORE TRIBUNAL, CBDT ISSUED CIRCULAR NO. 19/2019 FOR INCREASING THE MONETARY LIMIT FROM RS. 20.00 LAKHS TO RS. 50.00 LAKHS, BY REVENUE BEFORE THE TRIBUNAL, AND CONSEQUENTLY THE APPEAL OF THE REVENUE WAS DISMISSED DUE TO LOW TAX EFFECT. 6. NOW, THE REVENUE HAS RAISED THE ISSUES THAT INFORMATION IN THIS CASE WAS RECEIVED FROM EXTERNAL SOURCE. IN THE PRESENT CASE THERE IS NO DISPUTE THAT INFORMATION WAS RECEIVED THE OFFICER OF CCIT, SURAT. THE COORDINATE BENCH OF MUMBAI TRIBUNAL IN ITO VS AMARCHAND P SHAH (SUPRA), WHILE CONSIDERING THE PLEA OF REVENUE THAT INFORMATION RECEIVED FROM DDIT( INVESTIGATION), AND THAT SAID INFORMATION WAS FROM EXTERNAL SOURCE, THE TRIBUNAL HELD THAT THE DIRECTORATE OF INCOME TAX (INVESTIGATION) IS AN INTERNAL AGENCY/ WING OF THE REVENUE DEPARTMENT, WHICH WORKS UNDER THE AEGIS OF ITS CONTROLLING AUTHORITIES MA NO. 25/SRT/2020 IN ITA 381/SRT/2017 SMT. MAYURI ASHIT BOOKSHELLER , 5 CBDT, AND CANNOT BE CONSIDERED TO BE EXTERNAL SOURCES AND THEREFORE, INFORMATION RECEIVED BY ASSESSING OFFICER FROM DDIT(INVESTIGATION) IS NOT COVERED BY EXCEPTION CLAUSE AS CONTAINED IN PARA 10(E) OF CBDT CIRCULAR NO. 3/2018. CONSIDERING THE AFORESAID RATIO OF THE DECISION OF TRIBUNAL, WE ARE ALSO OF THE VIEW THAT INFORMATION RECEIVED FROM CCIT, SURAT IS NOT THE INFORMATION FROM EXTERNAL SOURCES AS PRESCRIBED IN CBDT CIRCULAR NO 3/2018 DATED 20.08.2018. THUS, THE CONTENTION RAISED IN THE PRESENT MA THAT THE ADDITION IN THE ASSESSMENT WAS BASED ON THE BASIS OF EXTERNAL INFORMATION IS MISPLACED. EVEN OTHERWISE THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN THE PRESENT APPEAL IS COVERED BY THE DECISION OF TRIBUNAL IN ITO VS DEEPAK KALIDAS PAUWALA (SUPRA), WHICH HAS BEEN AFFIRMED BY GUJARAT HIGH COURT IN PCIT VS DEEPAK KALIDAS PAUWALA IN TAX APPEAL NO. 249 OF 2016 DATED 28.03.2016. IN THE RESULT THE MA FILED BY THE REVENUE IS DISMISSED. 7. IN THE RESULT THE MA FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 01 ST JANUARY 2021 BY PLACING THE RESULT ON THE NOTICE BOARD. SD/- SD/- (DR.ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 01 ST JANUARY, 2021 SELF BY AUTHOR MA NO. 25/SRT/2020 IN ITA 381/SRT/2017 SMT. MAYURI ASHIT BOOKSHELLER , 6 COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR , SURAT