INCOME TAX OFFICER-9(1)(4), MUMBAI V. AVIV DEVELOPERS PRIVATE LIMITED, MUMBAI

MA 57/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7894 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 05-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

MA NO 57/MUM/2020 IN ITA NO. 5012/MUM/2017 ASSESSMENT YEAR: 2010 - 11 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO 57/MUM/2020 IN ITA NO. 5012/MUM/2017 ASSESSMENT YEAR: 2010 - 11 INCOME TAX OFFICER 9 (1)(4) .APPLICANT MUMBAI. VS. M/S. AVIV DEVELOPERS PVT. LTD., RESPONDENT SHOP NO. 17, MITTAL INDUSTRIAL ESTATE, MAROL, ANDHERI (E), MUMBAI 400059 [PAN: AAHCA7962K] APPEARANCES BY SUN IL DESHPANDE FOR THE APPLICANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JULY 1 3, 2021 DATE OF PRONOUNCEMENT OF ORDER : S E P T E M B E R 0 2 , 2021 ORDER PER BENCH: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER SEEKS THE RECALL OF THE ORDER DATED 20.08.2019 ASKED BY US, SUMMARILY DISMISSING THE APPEAL ON ACCOUNT OF LOW TAX EFFECT BEING LESS THAN 50 LAKHS, ON THE GROUND THAT SINCE THE ASSESSMENT BASED ON THE INFORMATION RECEIVED FROM THE OFFICE OF DIT ( I & CI ) MUMBAI/REGISTRAR OF COMP ANIES THE CASE OF THE ASSESSEE IS COVERE D BY THE EXCEPTION CLAUSE SET OUT IN PARA 10(E) OF THE AMEND ED THE CBDT CIRCULAR. THE ASSESSING OFFICER APPLICANT HAS IN THIS CONNECTION INTER ALIA OBSERVED AS FOLLOWS: MA NO 57/MUM/2020 IN ITA NO. 5012/MUM/2017 ASSESSMENT YEAR: 2010 - 11 PAGE 2 OF 3 5.5 REVENUES PLEADING: AS ALREADY STATED IN EARLIER PARA 5.1, THE CASE OF THE TAXPAYER/ASSESSEE WAS REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFICE OF THE DIT (I&CI) MUMBAI/REGISTRAR OF COMPANIES THAT THE TAX PAYER HAS RECEIVED AN AMOUNT OF RS.1,40,00,000/ - IN THE FORM OF SHARE APPL ICATION MONEY AND SHARE PREMIUM. PERUSAL OF THE INFORMATION REVEALED THAT THE ASSESSEE HAS ALLOTTED 1,40,000 SHARES WITH THE FACE VALUE OF RS.10 PER SHARE AND PREMIUM OF RS.90 PER SHARE. 5.6 THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS VERIFIE D THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS, WHICH PROVE THAT THE PARTIES WHO CLAIMED TO HAVE INVESTED IN THE SAID SHARES OF THE COMPANY WERE NOT GENUINE. DURING COURSE OF REMAND PROCEEDINGS ALSO, THE PERSONS WHO APPEARED BEFORE THE AS SESSING OFFICER COULD NOT PROVIDE SATISFACTORY EXPLANATION WITH REGARD TO THE TRANSACTIONS. THE CREDITWORTHINESS OF THE PARTIES IS ALSO UNDER SERIOUS DOUBT IN THE ABSENCE OF DETAILS SEEING THE FINANCIALS OF THE SAID COMPANIES. THE INVESTMENT REPORTED BY TH ESE COMPANIES DEFY THE TEST OF HUMAN PROBABILITIES AND CANNOT BE SAID TO BE GENUINE WHICH HAS NOT BEEN APPRECIATED BY THE LD CIT(A) (RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE SUMATI DAYAL VS. CIT (1995), 214 ITR 801(SC) ). 5.7 IN VIE W OF THE FORGOING AND THE FACTS AS NARRATED ABOVE AND AS THE CASE IS COVERED UNDER CLAUSE(E) TO PARA 10 OF THE CBDT CIRCULAR NO.3 DATED 11.07.2018 AND SUBSEQUENTLY AMENDED BY LETTER DT.20.08.2018, RESPECTFULLY RELYING ON THE DECISION OF THE HONBLE ITAT AT PARA 5 OF ORDER IN ITA NO.5012/MUM/2017 DATED 20.08.2019. IT IS HUMBLY PRAYED THAT THE HONBLE ITAT D BENCH, MUMBAI, MAY KINDLY RECALL ITS ORDER (ITA NO.5012/MUM/2017 DATED 20.08.2 019) FOR AY 2010 - 11 FOR R ECONSIDERATION OF THE ISSUE ON MERITS IN THE INTERESTS OF JUSTICE. 2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 3. WE FIND THAT SO FAR AS THE EX CEPTION SET OUT IN PARA 10(E) IS CONCERNED , IT S EXCLUDE THE CASES 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). IN THE PRESENT CASE THE INFORMATION IS APPLI CABLY RECEIVED FRO M THE DIRECTOR OF INCOME TAX (I& CI) WHICH IS AN INTERNAL AGENCY OF THE INCOME TAX DEPARTMENT - BASED ON THE INPUTS FROM THE REGISTRAR OF COMPANIES. SO FAR AS INPUTS FROM THE REGISTRAR OF COMPANIES ARE CONCERNED THESE ARE THE NOT IN THE NAT URE OF INPUTS FROM LAW ENFORCEMENT AGENCIES BUT THESE INPUTS ARE BASED ON THE SPECIFIC REQUISITIONS MADE BY THE INCOME TAX AUTHORITIES . IT CANNOT BE THEREFORE SAID THAT THE INFORMATION RECEIVED FROM THE R EGISTRAR OF COMPANIES IS INFORMATION RECEIVED FROM THE EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI) HAS BEEN ALREADY POINTED OUT SO FAR THE I NFORMATION RECEIVED FROM DIT (I& CI) IS CONCERNED THAT IS INTERNAL AGENCY. IN THIS VIEW OF THE MATTER THE PLEA OF THE APPLICANT DOES NOT NEED OUR APPROVAL. WE ARE OF CONSIDERED VIEW THAT THE CASE OF THE ASSESSEE IS NOT COVERED BY MA NO 57/MUM/2020 IN ITA NO. 5012/MUM/2017 ASSESSMENT YEAR: 2010 - 11 PAGE 3 OF 3 THE EXCEPTION CLAUSE SET OUT IN PARA 10 (E) OF THE CBDT CIRCULAR IN QUESTION. T HE MISCELLANEOUS APPLICATION IS ACCORDINGLY, D ISMISSED . 4. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 0 2 N D DAY OF SEPTEMBER 202 1. S D / - S D / - JUSTICE P.P. BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED 0 2 N D S E P T E M B E R , 2021 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI