INCOME TAX OFFICER - 20(1)(5), MUMBAI V. SHRI ISMAILBHAI M. LOKHANDWALA, MUMBAI

MA 304/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3588 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-10-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 03-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bogus purchase; Tax effect
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI RAVISH SOOD, JUDICIAL MEMBER M.A NO. 304/MUM/2019 (ARISING OUT OF ITA NO.5618/MUM/2017 FOR ASSESSMENT YEAR : 2011 2012) ITO WARD 20(1)(5), MUMBAI. VS. SHRI ISMAILBHAI M LOKHANDWALA, 9, THLIZ CHS, ST JOHN BAPTIT ROAD, BANDRA, MUMBAI 400 050. PAN ABIPL3610Q (APPLICANT) RESPONDENT) APPLICANT BY : SHRI ABHIRAMA KARTIKEYAN RESPONDENT BY : SHRI C V JAIN DATE OF HEARING : 12 .0 7 .201 9 DATE OF PRONOUNCEMENT : 24. 1 0. 201 9 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER THE REVENUE BY VIRTUE OF THIS MISCELLANEOUS APPLICA TION SEEKS TO RECALL THE ORDER OF THE TRIBUNAL, DATED 21.08.2019, PASSED IN ITA NO.5618/MUM/2017 FOR THE ASSESSMENT YEAR 2011-2012. 2. AT THE TIME OF HEARING, LEARNED DR SUBMITTED THA T THE SAID APPEAL HAS BEEN DISMISSED BY THE TRIBUNAL FOR HAVING LOW TAX EFFECT (NOT EXCEEDING RS 20 LACS) IN TERMS OF CBDT CIRCULAR NO.03/2018 [F.NO.279/MISC.14 2/2007-IT(PT)] DATED 11.07.2018. THE LEARNED DR SUBMITTED THAT THE CASE OF THE ASSESSEE IS COVERED BY THE EXCEPTION AS ENVISAGED IN CLAUSE (E) OF THE CBD T CIRCULAR DATED 20.08.2018, AS THE CASE OF THE ASSESSEE WAS ON THE BASIS OF INFORM ATION RECEIVED FROM SALES TAX MA NO.304/MUM/2019 SHRI ISMAILBHAI M LOKHANDWALA. 2 DEPARTMENT, GOVERNMENT OF MAHARASHTRA TO THE FACT T HAT THE ASSESSEE IS A BENEFICIARY OF HAWALA OPERATORS, AVAILING ENTRIES O F BOGUS PURCHASES WITHOUT TAKING PHYSICAL DELIVERY. THE LEARNED DR ALSO POINTED OUT THAT A NEW CIRCULAR NO. 17/2019 DATED 08.08.2019, HAS ALSO BEEN BROUGHT OUT WHEREIN THE MONETARY LIMIT IS INCREASED TO RS 50 LACS. BUT IN THIS CIRCULAR ALSO AN EXCEPTION HAS BEEN PROVIDED THAT WHERE THE RE-OPENING IS BASED ON THE INFORMATI ON FROM THIRD PARTY SOURCE, THEN THE CASE WOULD NOT BE COVERED BY THE SAID CIRCULAR. THE LEARNED DR THEREFORE PRAYED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALL ED ON THIS GROUND. 3. AT THE TIME OF HEARING NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE WAS PRESENT, THEREFORE, THE MISCELLANEOUS APPLICATION I S BEING DISPOSED OF ON MERIT AFTER HEARING THE LEARNED DR. 4. AFTER PERUSING THE MISCELLANEOUS APPLICATION AND HEARING THE LEARNED DR, WE FIND THAT IN THIS CASE THE INFORMATION WAS RECEIVED BY THE REVENUE FROM A THIRD PARTY, SALES TAX AUTHORITY, MAHARASHTRA, WHICH IS P ROVIDED IN THE EXCEPTION IN BOTH THE CIRCULARS DATED 11.07.2018 AS WELL AS 08.08.20 19. THEREFORE, THE SAID CASE FALLS OUTSIDE THE AMBIT OF BOTH THE CIRCULARS AND, ACCORD INGLY, THE ORDER OF THE TRIBUNAL DISPOSING OF THE APPEAL IN ITA NO. 5618/MUM/2018 IS CONTAINING APPARENT MISTAKE IN TERMS OF SECTION 254(2) OF THE INCOME TAX ACT. ACCORDINGLY, WE RECALL OUR ORDER DATED 21.08.2018 TO THE EXTENT IT RELATES TO ITA 56 18/MUM/2017 FOR A.Y. 2011-12 AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARI NG IN THE REGULAR COURSE. MA NO.304/MUM/2019 SHRI ISMAILBHAI M LOKHANDWALA. 3 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 4 TH OCTOBER, 2019. SD/- SD/- (RAVISH SOOD) (RAJESH KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI, DATED : 24 TH OCTOBER, 2019 SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI