The ACIT- 1(1), Bhopal V. Shri Mukesh Sharma, Bhopal

MA 43/IND/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0835 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-05-2019
• Assessment Year: 2004-2005
• Appeal Filed On: 30-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S AMBEDKAR
• Keywords: Income from undisclosed sources; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NOS.35, 43, 44, 45, 46, 47/IND/2017 (ARISING OUT OF IT(SS)NO.82 TO 87/IND/2013) ASSESSMENT YEARS: 2003-04 TO 2008-09 ACIT-1(1) BHOPAL / VS. SHRI MUKESH SHARMA, FLAT NO.1003-1004, PREMIUM TOWER-7, SHALIMAR TOWNSHIP VIJAY NAGAR, A.B. ROAD, BHOPAL ( REVENUE ) ( RE SPONDENT ) PAN: ANKPS 8253 L REVENUE BY SHRI R.S. AMBEDKAR , SR. DR RESPONDENT BY SHRI SUMIT NEMA, SR. ADV. & SHRI GAGAN TIWARI, ADV. DATE OF HEARING: 10.05.2019 DATE OF PRONOUNCEMENT: 30.05.2019 / O R D E R PER MANISH BORAD, A.M: THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE INCOME TAX ACT HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE TRIBUNAL DATED 19.09.2014 IN IT(SS)NOS.8 2 TO MUKESH SHARMA MANO.35/IND/2017 2 87/IND/2013. IN SUPPORT OF THIS MISC. APPLICATION REQUESTING FOR RECALLING OF THE ORDER OF THE TRIBUNAL DATED 19.09.2014 RELATING TO THE ASSESSEE FOLLOWING WRITTEN SUBMISSIONS HAVE BEEN PLACED BEFORE US BY THE REVENUE : IN THIS CASE THE HON'BLE I.T.A.T. BENCH, INDORE PA SSED A COMPOSITE ORDER FOR A.Y. 2003-04 TO 2008-09 ON 19.0 9.2014 WHICH WAS RECEIVED IN THE OFFICER OF THE CIT ON 17. 10.2014. BY THE IMPUGNED ORDER THE HON'BLE I.T.A.T. DECIDED THE APPEALS FOR THESE PRESCRIBED VIDE CBDT CIRCULAR NO.5/2014 DATED 10.07.2014. IT WAS NOTICED THAT THE DEPARTMENT APPEAL SHOULD NO T HAVE BEEN DISMISSED IN LIMINE AS THE SAME WAS COVERED BY PARA -9 OF THE BOARDS CIRCULAR NO.21/2015 DATED10.12.2015 WHICH ST ATES AS UNDER:- .HOWEVER, IN CASE OF COMPOSITE ORDER OF ANY HIGH COURT OF APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE A SSESSMENT YEAR AND COMMON ISSUES OF MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESS MENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBE D MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO F ILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEED S THE MONETARY LIMIT PRESCRIBED AS THE CIT(A) HAS PASSED A COMPOSITE ORDER FOR A.Y. 2003-04 TO 2009-10 AND THE TAX EFFECT FOR A.Y. 2009-10 WAS MOR E THAN RS.10 LACS APPEAL WAS REQUIRED TO BE FILED FOR ALL THE ASSESSMENT YEARS AS PER PARA-5 OF THE ORDER. ACCORD INGLY AN MA WAS FILED IN PROVISIONS OF SECTION. 254(2) OF TH E IT ACT. THE AMENDED PROVISIONS OF SECTION. 254(2) OF THE IT ACT ARE NOT APPLICABLE TO THE PRESENT APPEALS AS THE SAME IS AP PLICABLE ONLY TO THE APPEALS DECIDED AFTER 01.06.2016 WHEREAS IN THESE CASES THE DATE OF ORDER WAS PASSED ON 19.09.2014. RELIANCE IN THIS REGARD IS PLACED ON THE FOLLOWING DECISIONS: 1. M/S. LUCENT TECHNOLOGIES GRL LLC, GURGAON VS. THE A D. DIRECTOR OF INCOME TAX(INTERNATIONAL TAXATION) RANG E-4, MUMBAI MUKESH SHARMA MANO.35/IND/2017 3 2. DISTRICT CENTRAL CO-OP BANK LTD. RAISEN VS. UNION O F INDIA, HIGH COURT OF MADHYA PRADESH, INDORE DIVISION BENCH . 2. LD. DEPARTMENTAL REPRESENTATIVE (DR) FURTHER SUBMIT TED THAT THE COMBINED TAX EFFECT OF A.YS. 2003-04 TO 200 8-09 WAS MORE THAN RS.4 LACS BUT HON'BLE TRIBUNAL HAS DISMISSED REVENUES APPEAL FOR A.YS. 2003-04 TO 2008- 09 HOLDING THAT THE TAX EFFECT IS LESS THAN RS.4 LACS IN EACH OF THE YEAR, DISREGARDING THE FACT THAT FOR A.Y. 2009-10 THE TAX EFFECT IS RS.92.63 LACS WHICH OVER ALL MAKE THE TAX EF FECT FOR A.YS. 2003-04 TO A.Y. 2009-10 EXCEEDING RS.4 LACS AND ALSO NOT CONSIDERING THE FACT THAT THE LD. CIT(A) PASSED COMPOSITE ORDER FOR A.YS. 2003-04 TO 2009-10. 3. PER CONTRA LD. SENIOR COUNSEL FOR THE ASSESSEE REF ERRING TO CBDT CIRCULAR NO.5/2014 DATED 10.07.2014, CIRCULAR NO.21/2015 DATED 10.12.2015 AND CBDT, CIRCULAR NO.3/2018 DATED 11.07.2018 SUBMITTED THAT AS ONLY IN CASE OF COMPOSITE ORDER OF ANY HON'BLE HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEAR(S) EVEN IF THE TAX EFFECT IS LESS T HAN THE PRESCRIBED MONETARY LIMIT IN ANY OF THE YEARS(S). HE SUBMITTED THAT THE ISSUES INVOLVED DURING THE A.YS. 2003- MUKESH SHARMA MANO.35/IND/2017 4 04 TO 2009-10 ARE NOT COMMON EXCEPT FOR THE ISSUE RE LATING THE TREATMENT OF NON-GENUINE AGRICULTURAL INCOME AS INCOME FROM UNDISCLOSED SOURCES AND TOTAL OF TAX EFFE CT RELATING TO THIS ISSUE WHICH IS COMMON FOR ALL THE 7 (SEVEN) ASSESSMENT YEARS IS LESS THAN RS.4 LACS AS PRESCRIBED IN THE CBDT CIRCULARS REFERRED ABOVE AND THEREFORE, HON' BLE TRIBUNAL HAS RIGHTLY DELETED THE REVENUES APPEAL FOR LOW TAX EFFECT FOR A.YS. 2003-04 TO 2008-09. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. A COMPOSITE ORDER WAS PASSED BY THE LD. CIT(A) FOR A.YS. 2003-04 TO 2009-10 IN THE CASE OF ASSESSEE MR. MUKESH SHARMA EXCEPT FOR A.Y. 2009-10 WHICH INVOLVES TAX OF RS.92.63 LACS AND IN THE REMAINI NG ASSESSMENT YEARS TAX EFFECT IN EACH YEARS IS LESS THAN R S.4 LACS. TRIBUNAL VIDE ITS ORDER DATED 10.07.2014 DISMISS ED THE REVENUES APPEAL FOR A.YS. 2003-04 TO 2008-09 FO R THE TAX EFFECT BEING LESS THAN RS. 4 LACS AND BEING COVERE D BY THE CBDT, CIRCULAR NO.5/2014 DATED 10.07.2014. SUBSEQUENTLY, CBDT HAS ISSUED TWO CIRCULAR NO.21/2015 DATED 10.12.2015 AND CIRCULAR NO.3/2018 DATED 11.07.2018 REVISING THE TAX EFFECT LIMIT TO RS.10 L ACS & RS.20 LACS RESPECTIVELY. MUKESH SHARMA MANO.35/IND/2017 5 5. THE REVENUES GRIEVANCE THROUGH THIS MISC. APPLIC ATION IS THAT COMBINED TAX EFFECT FOR A.YS. 2003-04 TO 200 9-10 IS MORE THAN LIMIT PRESCRIBED, IN CBDTS, CIRCULAR PASSE D FROM TIME TO TIME IN THE YEAR 2014 PRESCRIBING TAX LIMIT OF RS.4 LACS, IN THE YEAR 2015 PRESCRIBING TAX LIMIT OF RS.10 LACS AND IN THE 2018 PRESCRIBING TAX LIMIT OF RS.20 L ACS. THE REVENUE IS CONTENDING THAT THE TAX EFFECT LIMIT HAS T O BE EXAMINED IN TOTALITY WITH REFERENCE TO ALL THE ASSESSME NT YEARS AS A COMPOSITE ORDER HAS BEEN PASSED. 6. WE, HOWEVER, ON PERUSAL OF THE CBDT CIRCULAR NO.21/2015 DATED 10.12.2015 FIND THAT PARA 5 OF THE CIRCULAR READS AS FOLLOWS: THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFE CT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTE D ISSUES IN THE CASE OF EVERY ASSESSEE. LF, IN THE CASE OF AN A SSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT Y EAR, APPEAL, CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL S HALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSM ENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH C OURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE A SSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESS MENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBE D MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO F ILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEED S THE MONETARY MUKESH SHARMA MANO.35/IND/2017 6 LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHAL L BE DEALT WITH SEPARATELY. 7. FROM PERUSAL OF THE ABOVE PARA OF THE CBDT CIRCULAR AND IN THE LIGHT OF THE FACTS OF THE INSTANT APPEAL WE OBSERVE THAT THE TAX EFFECT OF ALL THE ASSESSMENT YEARS FOR WHICH A COMPOSITE ORDER HAS BEEN PASSED IS TO BE TAKEN INTO ACCOUNT ONLY IF THE COMMON ISSUE IS INVOLVED IN ALL THESE YEARS AND THE TAX EFFECT ARISING OUT OF THIS COM MON ISSUE EXCEEDS THE MONETARY LIMIT PRESCRIBED BY THE C BDT CIRCULAR (AS APPLICABLE), FOR FILING APPEALS BEFORE TH E TRIBUNAL. 8. FROM GOING THROUGH THE ISSUES INVOLVED IN VARIOUS YEARS, WE FIND THAT VARIOUS ISSUES HAVE BEEN RAISED. BUT ONL Y THE ISSUE OF TREATMENT OF NON-GENUINE AGRICULTURAL INCOME AS INCOME FROM UNDISCLOSED SOURCES HAS BEEN COMMONLY RAISED FOR ALL THE YEARS. THE TOTAL TAX EFFECT ON THI S ISSUE IS LESS THAN THE PRESCRIBED LIMIT OF RS.4 LAC VIDE CIRCULAR NO.5/2014 DATED 10.07.2014 AND PRESENTLY THE LIMIT IS RAISED TO RS. 20 LACS (CIRCULAR NO.3/2018 DATED 11.07.2018). THUS, THERE SEEMS NO APPARENT MISTAKE IN THE FINDING OF THE TRIBUNAL DISMISSING REVENUES APPEAL FO R A.YS. 2003-04 TO 2008-09 BEING BELOW THE PRESCRIBED LIMIT MUKESH SHARMA MANO.35/IND/2017 7 FOR FILING THE APPEAL BEFORE THE I.T.A.T. AND HAS RIGHT LY APPLIED THE CBDT, INSTRUCTION NO.5/2014 DATED 10.07.2014. WE, THEREFORE, FIND NO MERIT IN ALL THE MISC. APPLICATIONS FILED BY THE REVENUE AND SAME DESERVES TO BE DISMISSED. 9. IN THE RESULT, ALL THE SIX MISCELLANEOUS APPLICATION S BEING NOS. 35, 43, 44, 45, 46, 47/IND/2017 FILED BY THE REVENUE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 05 .2 019. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 30/05/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR