The ITO, Ward-1(2)(4), Ahmedabad V. Shri Shubham Vijaykumar Jain, Ahmedabad

MA 336/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7538 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 25-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA NO. 336/AHD/2019 (ARISING OUT OF ITA NO. 1117/AHD/2019 ) ASSESSMENT YEAR : 2011-12 THE INCOME TAX OFFICER, WAR-1(2)(4), AHMEDABAD V/S . SHUBHAM VIJAYKUMAR JAIN, 1634/1, KADVA POLE, MOTILAL SHETH NI POLE, DARIAPUR, AHMEDABAD-380 001 [PAN : AGTPJ 7977 Q] (APPLICANT) .. (RESPONDENT) REVENUE BY : SHRI DILEEP KUMAR, SR DR ASSESSEE(S) BY : SHRI ASEEM L THAKKAR, AR / DATE OF HEARING : 20/03/2020 /DATE OF PRONOUNCEMENT : 20/03/2020 / O R D E R PER RAJPAL YADAV, VICE PRESIDENT :- 1. THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTE D AT THE INSTANCE OF THE REVENUE FOR RECALL OF THE ORDER DATED 14.08.2019 PA SSED BY THE TRIBUNAL IN ITA NO. 1117/AHD/2019, WHICH WAS DISMISSED BY THE TRIBU NAL ALONGWITH OTHER 627 APPEALS OF THE DEPARTMENT WITH LEAD CASE BEARING NO . 1398/AHD/2004, ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCU LAR NO 17/2019 DATED 08.08.2019. 2. IT IS PLEADED IN THE APPLICATION THAT THE CBDT H AS ISSUED A CIRCULAR NO.17/2019 DATED 08.08.2019 PROVIDING THEREIN THAT IF TAX EFFECT INVOLVED BY VIRTUE OF RELIEF GIVEN BY THE CIT(A) IS LESS THAN R S.50 LAKHS, THEN THE REVENUE WILL NOT CHALLENGE THAT ORDER OF THE CIT(A). CONSIDERIN G THIS CIRCULAR, THE TRIBUNAL HAS DISMISSED 628 APPEALS FILED BY THE REVENUE, INC LUDING CERTAIN COS AT THE INSTANCE OF THE ASSESSEE, ON 14 TH AUGUST 2019. IN THE APPLICATION, THE REVENUE HAS PLEADED THAT THEREAFTER A CLARIFICATION HAS BEEN GI VEN BY THE CBDT VIDE CIRCULAR NO.23/2019 DATED 06.09.2019. IN THIS CIRCULAR, THE BOARD HAS PROVIDED THAT THE MA NO. 336/AHD/ 2019 ITO VS. SHUBHAM VIJAYKUMAR JAIN AY 2011-12 - 2 - TAX EFFECT LIMIT PROVIDED IN THE CIRCULAR NO.17/201 9 WILL NOT BE APPLICABLE ON THE CASES WHERE BOGUS LONG TERM CAPITAL GAIN (LTCG) ON PENNY STOCK ISSUE IS INVOLVED. ON THE STRENGTH OF THIS SUBSEQUENT CIRCU LAR, IT IS PLEADED BY THE REVENUE THAT ITS APPEAL BE RESTORED TO ITS ORIGINAL NUMBER, BECAUSE THE TRIBUNAL HAS ERRED IN DISMISSING ITS APPEAL. ON THE OTHER H AND, IT WAS PLEADED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE HAS NO OBJECTION IF THIS APPEAL OF THE REVENUE IS RESTORED TO ITS ORIGINAL NUMBER, BECAUSE THE ASSESS EE WANTS TO AVAIL VIVAD SE VISHWAS SCHEME FLOATED BY THE GOVERNMENT OF INDIA WHICH H AS BEEN NOTIFIED RECENTLY. 3. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIRC UMSTANCES, WE ARE OF THE VIEW THAT, THOUGH A SUBSEQUENT CIRCULAR ISSUED BY T HE BOARD ON 06.09.2019 HAS BEEN MADE APPLICABLE PROSPECTIVELY AND NOT WITH RET ROSPECTIVE EFFECT, WHEN THE TRIBUNAL HAS DECIDED THIS APPEAL, THERE WAS NO SUCH CONDITION STIPULATED IN THE CIRCULAR BEARING NO.17/2019. THUS, THERE IS NO APP ARENT ERROR IN THE ORDER OF THE TRIBUNAL, BECAUSE IF THE TRIBUNAL DISMISSED THE APP EAL OF THE REVENUE AFTER 6 TH SEPTEMBER 2019, ONLY THEN ITS ORDER WOULD BE CONSID ERED AS SUFFERING FROM PATENT ERROR. HOWEVER, IN VIEW OF THE CONCESSION G IVEN BY THE ASSESSEE THAT HE DOES NOT WANT TO CONTINUE LITIGATION WITH THE DEPAR TMENT AND WANTS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME, WE DEEM IT APPROPRIATE TO RECALL THE ORDE R OF THE TRIBUNAL IN THIS APPEAL AND RESTORE THE SAME TO ITS ORIGINAL NUMBER. IN CASE ON SOME TECHNICAL GROUND THE BENEFIT OF THE SCHEME IS BEING DECLINED TO THE ASSESSEE, THEN THE ASSESSEE WILL BE AT LIBERTY TO A PPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER AND ADJUDICATION OF THE APPLICATION OF T HE REVENUE ON MERITS. WITH THE ABOVE OBSERVATION, THIS APPLICATION OF THE REVENUE IS ALLOWED AND ITA NO.1117/AHD/2019 IS RESTORED TO ITS ORIGINAL NUMBER . 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON 20 TH MARCH 2019 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED ) (RAJPAL YADAV) ACCOUNTANT MEMBER VICE PRESIDENT AHMEDABAD, DATED 20/03/2020 *BT MA NO. 336/AHD/ 2019 ITO VS. SHUBHAM VIJAYKUMAR JAIN AY 2011-12 - 3 - / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '! / THE RESPONDENT. 3. & ( / CONCERNED CIT 4. ( ) ( / THE CIT(A)- 5. & , & , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) & ITAT, AHMEDABAD 1. DATE OF DICTATION- 20.03.2020.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .20.03.2020 OTHER MEMBER 20.03.2020. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. - 20.03.2020. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 20.03.2020.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 8. DATE OF DESPATCH OF THE ORDER