DCIT, CENTRAL CIRCLE- 15, NEW DELHI V. SUMATI GARG, NEW DELHI

MA 45/DEL/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2714 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘G’ NEW DELHI BEFORESHRI G.S. PANNU, HON’BLE PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. No.45/Del/2020 [Arising out of ITA No.3599/Del/2018] Assessment Year: 2009-10 DCIT, Central Circle-15, New Delhi Vs. Smt. SumatiGarg, BP-07, West Shalimar Bagh, New Delhi PAN :AQYPG6765E (Applicant) (Respondent) ORDER PERSAKTIJIT DEY, JM: The present application has been filed by the Revenue seeking recall of order dated 23.08.2019 passed in ITA No.3599/Del/2018. 2. We have heard Sh. Sanjay Kumar, learned Departmental Representative and Sh. Pranav Yadav, learned counsel for the assessee. Applicant by Sh. Sanjay Kumar, Sr. DR Respondent by Sh. Pranav Yadav, Advocate Date of hearing 23.09.2022 Date of pronouncement 23.09.2022 M.A. No. 45/Del/2020 2 | P a g e 3. Undisputedly, the corresponding appeal of the Revenue, being ITA No.3599/Del/2018 was dismissed by the Tribunal, since, the tax effect on the amount disputed by the Revenue is below the monetary limit of Rs.50 lakhs as per Circular No. 17/2019, dated 08.08.2019 issued by Central Board of Direct Taxes (CBDT). It is the case of the Revenue that the appeal should have been decided on merits as it is protected under the exceptions provided to CBDT Circular No. 17/2019, dated 08.08.2019. In this context, the Revenue has relied upon CBDT Circular No. 23 of 2019, dated 06.09.2019, which includes cases involving generating loss in share transaction through client code modification. Whereas, it is the stand of the assessee that there is no mistake in the order of the Tribunal, as, on the date of disposal of the appeal, CBDT Circular No. 23 of 2019, dated 06.09.2019 was not in existence. In support of such contention, learned counsel for the assessee has relied upon the following decisions: 1. Pr. CIT vs. DenishaRajendraKeshwani [2022] 134 taxmann.com 249 (Gujarat) 2. Pr. CIT Vs. AnandNatwarlalSharda [2021] 128 taxmann.com 376 (Gujarat) M.A. No. 45/Del/2020 3 | P a g e 4. Having considered rival submissions and perused the materials on record, we find, Revenue’s appeal, being ITA No.3599/Del/2018, was dismissed vide order 23.08.2019 as low tax effect appeal covered under CBDT Circular No. 17/2019, dated 08.08.2019. Admittedly, on the date of disposal of appeal, CBDT Circular No. 23 of 2019 dated 06.09.2019 providing certain exceptions to CBDT Circular No. 17/2019 dated 08.08.2019 was not in existence. Therefore, the Tribunal could not have taken cognizance of CBDT Circular no. 23 of 2019, dated 06.09.2019 at that stage. That being the admitted factual position, it cannot be said that the order passed by the Tribunal suffers from mistake apparent on the face of record as envisaged under section 254(2) of the Act. Notably, in case of Pr. CIT Vs. AnandNatwarlalSharda (supra), the Hon’ble Gujarat High Court while considering identical issue has held that, since, on the date of disposal of appeal by the Tribunal, CBDT Circular No. 23 of 2019, dated 06.09.2019 was not in existence, it cannot be said that there is mistake in the order of the Tribunal due to non-consideration of the aforesaid CBDT Circular. Same view has been reiterated by Hon’ble Gujarat High Court in case of Pr. CIT Vs. DenishaRajendraKeshwani (supra). M.A. No. 45/Del/2020 4 | P a g e 5. No contrary decision has been brought to our notice by learned Departmental Representative. 6. In view of the aforesaid, we do not find any merit in the miscellaneous application filed by the Revenue. Accordingly, it is dismissed. 7. In the result, the miscellaneous application is dismissed. Order pronounced in the open courton 23 rd September, 2022 Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER Dated: 23 rd September, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi