ITO, Ward- 3(5), Noida V. Watashi , Greater Noida

MA 302/DEL/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0385 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-10-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Keywords: Rectification of order; Tax effect; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “F” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M.A.No.302/Del/2019 [In ITA No.3523/Del/2019] [Assessment Year : 2009-10] ITO, Ward-3(5), Noida. vs Watashi, W/o-Shri Rampal Singh, Vill.-Habibpur, Greater Noida, Uttar Pradesh. PAN-AXOPB1744R APPELLANT RESPONDENT Appellant by Ms. Parul SIngh, Sr.DR Respondent by None Date of Hearing 07.06.2024 Date of Pronouncement 07.08.2024 ORDER PER KUL BHARAT, JM : By this Miscellaneous Application (“M.A”), the assessee is seeking recalling of the ex-parte order dated 11.09.2018 passed by the Tribunal in ITA No.3523/Del/2019 for the Assessment Year 2009-10 on the ground of tax effect. 2. At the time of hearing, no one attended the proceedings on behalf of the assessee. It is seen from the records that no one has been attending the proceedings on behalf of the assessee despite various opportunities were given to the assessee. Therefore, the application was taken up for hearing in the absence of the assessee and the application is being decided on the basis of material available on record. 3. Ld. Sr. DR for the Revenue reiterated the submissions as made in M.A. For the sake of clarity, the relevant contents of the application are reproduced as under:- Page | 2 “Sir, Sub.: Filing of Misc. Application before ITATfor rectification of mistake u/s 254(2) of the IT Act in order dated 11.09.2018 in the case of Smt. Watashi, W/o Sh. Ram Pal, Vill-Halbatpur, Greater Noida (PAN-AΧΟΡΒ1744R), Noida for AY 2009-10- Reg. Kindly refer to the Order dated 11.09.2018 in ITA No. 3523/Del/2018, passed by ITAT, Delhi Bench, 'SMC', New Delhi in the case of the above assessee (copy of the order encl. for kind perusal and ready reference). 2. Vide aforesaid order, Ld. ITAT dismissed the appeal of the revenue (without going into merits of the case) on the ground that the department should not have filed the instant appeal before the ITAT, wherein tax effect is less than Rs. 20,00,000/- Circular No. 03 of 2018 dated 11.07.2018 has been discussed, however, ITAT omitted to have look into the grounds of appeal. 3. In fact, the instant appeal was preferred as per para 10(a) of the CBDT Circular No. 03 of 2018 dated 11.07.2018, notwithstanding the fact that tax effect in this case is below Rs. 20. Lakh (kindly refer to 5th ground of appeal- copy enclosed for kind reference). Thus, the ITAT has omitted to appreciate the fact that by virtue of para 8 of the said Circular, an appeal can be filed even when there is no tax effect, in the circumstances, enumerated thereunder. It is noteworthy here that Ld. D.R. also could not brought the exceptions, to the notice of ITAT, as laid down in para 10(a) of the said Circular. In view of the above, it is evident that the mistake is apparent from the record, which needs to be rectified. It is therefore, requested to kindly refer the mistake and pass necessary order, in the said case.” 4. We have heard Ld. Sr. DR for the Revenue and perused the material available on records. The Revenue has filed the present application on the basis of para 10(a) of CBDT Circular No.3/2018 dated 11.07.2018. For the sake of clarity, the aforesaid para is reproduced as under:- Page | 3 10(a). “Where the Constitutional validity of the provisions of an Act or Rule is under challenge.” 5. A bare reading of the aforesaid para would make it clear that the Revenue has mis-directed itself. No such issue related to Constitutional validity of any provision of Act has been raised and was decided. Thus, the contention so raised by the Revenue, is unsustainable in the eyes of law. Thus, the application filed by the Revenue is hereby, dismissed. 6. In the result, the Miscellaneous application of the Revenue is dismissed. Order pronounced in the open Court on 7 th August, 2024. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR [ITAT, NEW DELHI] Draft dictated 01.07.2024 Draft placed before author 01.07.2024 Approved Draft comes to the Sr.PS/PS Order signed and pronounced on 07.08.2024 File came to P.S. 07.08.2024 File sent to the Bench Clerk 07.08.2024 Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order. Date of uploading on the website .08.2024