ACIT Circle, Sikar, Sikar V. M/s. Bhagwati Devi Agarwal HUF, Gananand Bhawan, Chawani, Neemkathana Sikar, Sikar

MA 34/JPR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8237 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 18-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARY JT
• Keywords: Audit objection; Tax effect; Capital Gains
• Section: 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NO. 34/JP/2020 (ARISING OUT OF ITA NO. 914/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, SIKAR CUKE VS. M/S BHAGWATI DEVI AGARWAL HUF, GAJANAND BHAWAN, CHAWATI, NEEMKATHANA, SIKAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAFHB 4690 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (JT. CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : MISS SHIVANGI SAMDHANI (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 19/03/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 23/03/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO. 914/JP/2019 DATED 21/08/2019 FOR A.Y 2010-1 1. 2. IN ITS MISC. APPLICATION, THE REVENUE HAS SUBMI TTED AS UNDER: 'VIDE ORDER DATED 21/08/2019 IN ITA NO.914/JP/2019 FOR A.Y. 2010-11 IN THE CASE OF M/S BHAGWATI DEVI AGARWAL, HUF, (PAN :AAFHB4690G), GAJANAND BHAWAN, CHAWANI, NEEM KA THANA, SIKAR, RAJ ASTHAN RECEIVED IN THE OFFICE OF THE PR. CIT-III, JAIPUR O N 20/10/2019, THE MA NO. 34/JP/2020 ACIT, SIKAR VS. M/S BHAGWATI DEVI AGARWAL HUF, SIKAR 2 HON'BLE TRIBUNAL DISMISSED THE APPEAL OF THE DEPART MENT AS NOT MAINTAINABLE FOR THE REASON THAT THE MONETARY LIMIT IS LESS THAN/ NOT EXCEEDING RS.50,00,000/-. HOWEVER, THE HON'BLE ITAT ALLOWED DEPARTMENT THE LIBERTY TO FILE MISCELLANEOUS APPLIC ATION IN CASE THE TAX EFFECT IS FOUND TO BE MORE THAN RS.50,00,000/- OR T HE CASE FALLS IN ANY THE EXCEPTIONS OF THE CIRCULAR. ON THIS ISSUE, IT IS HUMBLY SUBMITTED THAT A DRAFT PARA IN THIS CASE WAS RAISED BY THE REVENUE AUDIT AND ACCEPTED B Y THE DEPARTMENT AND AS A CONSEQUENCE OF REMEDIAL ACTION U/S 154 OF THE INCOME TAX ACT, 1961 ADDITION ON ACCOUNT OF LONG TE RM CAPITAL GAINS AMOUNTING TO RS.2,22,543/- WAS MADE IN THIS CASE. T HEREFORE, THE INSTANT CASE FALLS UNDER THE EXCEPTION CLAUSE 10(C) OF CENTRAL BOARD OF DIRECT TAX, NEW DELHI'S CLARIFICATION W.R.T. PARA 1 0 OF CIRCULAR 3 OF 2018 DATED 11.07.2018 ISSUED VIDE F.NO.279/MISC./M-93/20 18-ITJ DATED 11.12.2018. IN VIEW OF THE FACT, IT IS HUMBLY REQUESTED THAT T HE DEPARTMENTS APPEAL MAY KINDLY BE DECIDED ON MERIT THOUGH THAT TAX EFFECT IS BELOW RS.50,00,000/- BUT THE CASE WAS UND ER EXCEPTIONS CATEGORY AS MENTIONED ABOVE. 3. PER CONTRA, THE LD AR SUBMITTED THAT THE REVEN UE AUDIT OBJECTION AS REFERRED TO IN EXCEPTION CLAUSE 10(C) OF CENTRAL BO ARD OF DIRECT TAXS CIRCULAR, RELATES TO CAG AUDIT AND NOT TO AN INTERNAL AUDIT O F THE DEPARTMENT, AND GIVEN THAT IN THE PRESENT CASE, IT IS INTERNAL AUDI T OF THE DEPARTMENT WHICH HAS RAISED THE OBJECTION AND EVEN THOUGH THE SAME H AS BEEN ACCEPTED, IT DOESNT FALL IN ANY EXCEPTION AND THUS, THE MISC. A PPLICATION SO FILED BY THE REVENUE IS NOT MAINTAINABLE. MA NO. 34/JP/2020 ACIT, SIKAR VS. M/S BHAGWATI DEVI AGARWAL HUF, SIKAR 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. PARA 10 OF THE CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 AS AMENDED VIDE ITS LETTER DATED 20/08/2 018 READ AS UNDER: 3. PARA 10 OF THE SAID CIRCULAR PROVIDES THAT ADVE RSE JUDGMENTS RELATING TO THE ISSUES ENUMERATED IN THE SAID PARA SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 THEREOF OR THER E IS NO TAX EFFECT. PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 I S HEREBY AMENDED AS UNDER:- 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING I SSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EF FECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 A BOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANC IAL ASSETS)/ UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT A GENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIG ENCE (DGGI). (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE D EPARTMENT AND IS PENDING IN THE COURT. MA NO. 34/JP/2020 ACIT, SIKAR VS. M/S BHAGWATI DEVI AGARWAL HUF, SIKAR 4 5. ON PERUSAL OF THE EXCEPTIONS AS CONTAINED IN PAR A 10(C) OF THE CBDT CIRCULAR, IT TALKS ABOUT A SITUATION WHERE THE REVE NUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT AND IN SUCH A SCENA RIO, IT HAS BEEN PROVIDED THAT THE MATTER SHOULD BE CONTESTED ON MER ITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE PRESC RIBED MONETARY THRESHOLD. ON A PLAIN READING OF THE SAID EXCEPTION, IT IS CLE AR THAT IT TALKS ABOUT A SITUATION WHERE THERE IS A REVENUE AUDIT OBJECTION IN THE MATTER AND THERE IS NOTHING IN THE SAID LANGUAGE TO READ REVENUE AU DIT OBJECTION AS REFERRING TO OR RESTRICTING TO CAG AUDIT OBJECTION. THEREFORE, THE CONTENTION SO ADVANCED BY THE LD AR CANNOT BE ACCEP TED. 6. GIVEN THAT THERE IS NO DISPUTE THAT THE REVENUE AUDIT OBJECTION HAS BEEN RAISED IN THE MATTER AND WHICH HAS BEEN ACCEPT ED BY THE DEPARTMENT, THE ORDER SO PASSED BY THE COORDINATE B ENCH DATED 21.08.2019 IS HEREBY RECALLED IN ITS ENTIRETY FOR A DJUDICATION ON MERITS. THE REGISTRY IS DIRECTED TO LIST THE MATTER IN DUE COURSE. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE REVENUE IS ALLOWED IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 23/03/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23/03/2021 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: MA NO. 34/JP/2020 ACIT, SIKAR VS. M/S BHAGWATI DEVI AGARWAL HUF, SIKAR 5 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CIRCLE, SIKAR 2. IZR;FKHZ@ THE RESPONDENT- M/S BHAGWATI DEVI AGARWAL HUF, SIKA R 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {MA NO. 34/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR