DCIT CIR 2, KALYAN V. OM SAI CONSTRUCTION, THANE

MA 401/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0998 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHURY ARUN KUMAR LD
• Keywords: Bogus purchase; Tax effect

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.401/MUM/2019 [ARISING OUT OF I.T.A. NO.4155/MUM/2017] ( / ASSESSMENT YEAR: 2012-13) D CIT - CIRCLE - 2, KALYAN 2 ND FLOOR, MOHAN PLAZA KHADAKPADA WAYLE NAGAR, KALYAN WEST-421 301. / VS. M/S. OM SAI CONSTRUCTION 2 ND FLOOR, NANDI COMMERCIAL COMPLEX, NEAR DNS BANK, SHIVDHAM, AMBERNATH WEST THANE -421 501. ./ ./PAN/GIR NO. AABFO-8754-C ( /APPELLANT ) : ( / RESPONDENT ) REVENUE BY : CHAUDHURY ARUN KUMAR- LD.AR ASSESSEE BY : NONE / DATE OF HEARING : 06/09/2019 / DATE OF PRONOUNCEMENT : 06/09/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. BY WAY OF THIS APPLICATION, THE REVENUE SEEKS RE CALL OF TRIBUNAL ORDER ITA NO.4155/MUM/2017 PASSED IN BUNCH OF REVENUES A PPEALS VIDE COMMON ORDER DATED 03/08/2018. NONE HAS APPEARED FO R ASSESSEE AND THEREFORE, THE MATTER IS PROCEEDED WITH EX-PARTE QUA THE ASSESSEE. 2 2. DRAWING OUR ATTENTION TO THE APPLICATION, LD. DE PARTMENTAL REPRESENTATIVE [DR], SUBMITTED THAT THE REVENUES A PPEAL WAS DISMISSED KEEPING IN VIEW LOW-TAX EFFECT CIRCULAR NO. 03/2018 ISSUED BY CBDT ON 11/07/2018. OUR ATTENTION HAS BEEN DRAWN TO THE FAC T THAT QUANTUM ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF ALLEGED BOGUS PURCHASES STATED TO BE MADE FROM HAWALA DEALE RS PURSUANT TO INFORMATION PUBLISHED BY DEPARTMENT OF SALES TAX, G OVERNMENT OF MAHARASHTRA AND THEREFORE, DEPARTMENT OF SALES TAX BEING AN OUTSIDE AGENCY, THE FACTUAL MATRIX WAS COVERED BY EXCEPTION LAID DOWN AT SERIAL NO. (E) OF PARA 10 OF THE MODIFIED CIRCULAR ISSUED ON 2 0/08/2018. IN THE ABOVE BACKGROUND, LD. DR PLEADED FOR RECALL OF THE ORDER. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT CLAUSE 10 OF CIRCULAR NO. 03/2018 DATED 11/07/2018 STOOD AMENDED BY THE SAME AUTHORITY ON 20/08/2018 WHEREIN NEW EXCEPTIONS (E) & (F) WERE AD DED. THE EXCEPTION LISTED AT SERIAL NO. (E) OF CLAUSE 10 OF THE SAID C IRCULAR AS AMENDED W.E.F 20/08/2018 READ AS UNDER: - 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : - . (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI / ED / DRI / SFIO / DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). . HOWEVER, WE FIND THAT THE SAID AMENDMENT WAS BROUGH T IN BY CBDT ONLY WITH EFFECT FROM 20/08/2018 WHEREAS THE ORDER WAS A LREADY PASSED BY THE 3 TRIBUNAL ON 03/08/2018 AND THEREFORE, THERE COULD B E NO OCCASION TO CONSIDER THE SAID AMENDMENT AND NON-CONSIDERATION O F THE SUBSEQUENT CIRCULAR COULD NOT LEAD TO CONCLUSION THAT THERE WA S MISTAKE APPARENT FROM RECORD IN THE ORDER WITHIN THE MEANING OF SECTION 2 54(2) OF THE INCOME TAX ACT, 1961. UNDISPUTEDLY, THE FACTUAL MATRIX OF THE CASE WAS NOT COVERED BY ANY OF THE EXCEPTION PROVIDED IN THE CIRCULAR DATED 11/07/2018. THE NEW EXCEPTIONS (E) & (F) WERE ADDED IN CLAUSE 10 VIDE L ETTER DATED 20/08/2018 ONLY WITH EFFECT FROM THAT DATE WHICH IS EVIDENT FR OM PARA-4 OF THE LETTER DATED 20/08/2018. THEREFORE, THERE COULD BE NO OCCA SION TO CONSIDER THE SAME AND THE NEW EXCEPTIONS WERE NOT APPLICABLE EIT HER ON THE DATE OF HEARING OR ON THE DATE OF PRONOUNCEMENT OF THE ORDE R. 4. THEREFORE, FINDING NO MERIT IN THE APPLICATION, WE DISMISS THE SAME. RESULTANTLY, THE APPLICATION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06/09/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 4 2. #$!' / THE RESPONDENT 3. %% ( ) / THE CIT(A) 4. %% / CIT CONCERNED 5. & '# ( , % ( , / DR, ITAT, MUMBAI 6. ' *+, / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.