DEPUTY COMMISSIONER OF INCOME TAX-4(3)(1), MUMBAI V. QMAX SYNTHETICS PRIVATE LIMITED, MUMBAI

MA 312/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5149 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 23-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Tax effect
• Section: 69C; 268A; 43; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI VIKAS AWASTHY, JM M. A. N o. 3 1 2/ M u m/2 0 2 1 ( A r is in g ou t of M A N o . 43 79 /M u m/ 2 0 17 ) ( A s se ss m e nt Y e a r : 20 09- 1 0 ) ACIT-4(3)(1) Room No.649, Aaykar Bhawan M.K.Road Mumbai-400 020 V s . M/s. Qmax Synthetics Pvt.Ltd. 5-B/174, Sanjay Bldg Mittal Industrial Estate Andheri Kurla Road Andheri(E) Mumbai-400 0059 P AN /G I R N o . A A A C Q Q 0 2 0 6D (Appellant) : (Respondent) Appellant by : None Respondent by : Shri Milind S.Chavan, Sr.AR D at e o f H e a ri n g : 18.02.2022 Da t e o f P r o no un c e me nt : 22.02.2022 Per Shamim Yahya, A. M.: By way of this miscellaneous application by the revenue seeks recall of the order of this Tribunal in M.A No.312/M u m/2 01 9 a r i s i n g o ut o f I TA N o. 4 3 7 9/ M u m /2 0 17 vi de o r d er dated 03.05.2021 for AY 2009-10. 2. In miscellaneous application, the revenue has submitted as under:- '' The Hon'ble Income Tax Appellate Tribunal, Mumbai "D" Bench was pleased to pass an order in the above mentioned case on 03.05.2021 in ITA No. 4379/Mum/2017 for A.Y. 2009-10. The appeal was filed by the department. The main grounds of appeal raised by the revenue was against the Decision of the Ld CIT(A) directing the AO to delete the addition made towards unexplained unsecured loan of Rs. 66,00,000/- u/s 68 of the IT Act. and also on the decision of the Ld CIT(A) directing the AO to delete the addition made towards interest claimed to be paid on unexplained unsecured loan of Rs. 21,67,461/- u/s 69C of the I.T Act.” 2 M A N o. 3 1 2 / M / 2 1 3. The revenues contention is that the decision relied by the Ld CIT(A) in this case is the case of M/s Blue Hill Properties Pvt. Ltd vide ITA No. 2119 for the A.Y. 2006-07 & M/s Deep Darshan Properties Pvt. Ltd in ITA No, 2117/ Mum/2014 for AY 2006-07 revenue has filed further appeal to High Court on this issue. In view of the above appeal to High Court was recommended in this case on this ground. It is further submitted that hence this appeal by the revenue is directed against order of Ld. CIT(A), Mumbai dated 24.04.2017. Further as per the CBDT circular No.23/2019 dated 06.09.2019 it falls under exception as the case involves organized tax evasion activity. The tax effect is below the prescribed limit, as per the CBDT circular No. 17/2019 dated 08.08.2019. Therefore in spite of tax effect being below the monetary limit as prescribed by the CBDT, the case falls under the exception enumerated in amended Para 10(e) F. No. 279/ Misc 142/2007-ITJ (pt.) dated 20.08.2018 of the circular No. 3 of 2018 dated 11.07.2018. 4. We have heard the Ld. DR and perused the record. We note that filing of appeal by revenue in High Court against the order relied by ld.CIT(A) can by no stretch of imagination lead to a mistake in ITAT order. Further, the plea that the appeal by revenue falls under exception is not sustainable. We note that the CBDT circular, which ld. DR is mentioning reads as under:- “Subject: -Exception to monetary limits for filing appeals specified in any Circular issued under Section 268A of the Income-tax Act, 1961-reg. 1. Reference is invited to the Circulars issued from time to time by Central Board of Direct Taxes (the Board) under section 268A of the Income-tax Act,1961 (the Act), for laying down monetary limits and other conditions for filing of departmental appeals before Income Tax Appellate Tribunal (ITA T), High Courts and SLPs/appeals before Supreme Court. 2. Several references have been received by the Board that in large number of cases where organised tax-evasion scam is noticed through bogus Long-Term Capital Gain (LTCG)/Short Term Capital Loss (STCL) on penny stocks and department is unable to 3 M A N o. 3 1 2 / M / 2 1 pursue the cases in higher judicial fora on account of enhanced monetary limits. It has been reported that in large number of cases, ITA Ts and High Court have recognized the unique modus operandi involved in such scam and have passed judgements in favour of the revenue. However, in cases where some appellate fora have not given due consideration to position of law or facts investigated by the department, there is no remedy available with the department for filing further appeal in view of the prescribed monetary limits. 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 (IT AT), High Courts and SLPs/appeals before Supreme Court, appeals may be filed on merits as an exception to said circular, where Board, by way of special order direct filing of appeal on merit in cases involved in organised tax evasion activity.” (underline ours) 5. We note that the above circular mandates that appeal may be filed on merits as an exception to the said circular, where board by way of special order direct filing of appeal on merit in cases involved in organized tax-evasion activity. Ld. DR submits this is a organized tax evasion activity. However, he did not produce any special order by the board directing to file the appeal. In this view of the matter, there is no infirmity in the order of the ITAT, dismissing the appeal on order of tax effect. 6. Hence, this miscellaneous application filed the revenue stands dismissed. Order pronounced in the open court on 22 .02.2022 Sd/- Sd/- (Vikas Awasthy) (Shamim Yahya) Judicial Member Accountant Member Mumbai; Dated : 22 .02.2022 Thirumalesh , Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 4 M A N o. 3 1 2 / M / 2 1 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai