INCOME TAX OFFICER-26(2)(4), MUMBAI V. POWER MECH ENGINEERING CORPORATION , MUMBAI

MA 69/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4972 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMIR BHAGAT
• Keywords: Tax effect
• Section: 144; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “सी”, मुंबई 炈ी 灹मोद कुमार, उपा瀇य楹 एवं िवकास अव थी, ाियक सद के सम IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C”, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER MA No.69/MUM/2019 [ Arising out of ITA No.4895/MUM/2017(A.Y.2009-10)] Income-tax Officer-26(2)(4) .... आवेदक/Applicant Mumbai बनाम Vs. M/s Power Mech Engg.Corporation .......... ..... ितवादी/Respondent Shop No.2, Bhaiyasaheb Nagar Barkat Ali Naka, Wadala (East) Mumbai-400 037 PAN : AAFFP4713N आवेदक 獧ारा/ Applicant by : Shri Milind Chavan 灹ितवादी 獧ारा/Respondent by : Shri Samir Bhagat सुनवाई क琉 ितिथ/ Date of hearing : 17/12/2021 घोषणा क琉 ितिथ/ Date of pronouncement : 16/03/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: This miscellaneous application under section 254(2) of the Income-tax Act, 1961 (hereinafter referred to as ‘Act’), has been filed by the department for recalling the order of Tribunal in ITA No.4895/Mum/2017 for assessment year 2009-10 decided on 24/08/2018. 2 MA No.69/MUM/2019 A.Y. 2009-10 2. Shri Milind Chavan representing for the department submitted that the Tribunal has dismissed the aforesaid appeal of the revenue on account of low tax effect in the light of CBDT circular No.3/2018 dated 11/07/2018. The learned Departmental Representative pointed that the assessment in the aforesaid case was reopened on the basis of information received from DGIT (Inv). The source of information for DGIT(Inv) was the investigation carried out by the Sales-tax Department, Government of Maharashtra. Therefore, this appeal by the revenue falls under exceptions provided in para 10(e) of CBDT letter dated 20/08/2018. 3. On the other hand, Shri Samir Bhagat appearing on behalf of the assessee submitted that the assessment in the case of the assessee for assessment year 2009-10 was re-opened on the basis of information received from DGIT(Inv), Mumbai. The Tribunal, in the case of ITO vs Amarchand P Shah reported as 111 taxmann.com 385 has held that Directorate of Income-tax (Investigation) is an internal wing of the department and hence, cannot be considered as an external source as envisaged in CBDT communication dated 20/08/2018. 4. Both sides heard. The Tribunal, vide order dated 24/08/2018 decided bunch of appeals filed by the revenue. All the appeals were dismissed on account of low tax effect by placing reliance on CBDT circular No.3/2018 (supra). Liberty was granted to the Revenue to move an appropriate application for recalling of the order where the appeal is covered by exceptions. The appeal of the Revenue in ITA No.4895/Mum/2017 was also dismissed with other appeals vide composite order. A perusal of the assessment order dated 30/03/2015 passed under section 144 r.w.s. 147 of the 3 MA No.69/MUM/2019 A.Y. 2009-10 Act shows that the assessment was reopened on the basis of information received from the DGIT(Inv), Mumbai. It is not emanating from the assessment order that the addition has been made on the basis of information received from external source as contemplated in CBDT letter dated 20/08/2018. Investigation wing is an integral part of Income-tax Department and hence, any information received from DGIT(Inv) cannot be said as information received from external source. The co-ordinate bench in the case of ITO vs Amarchand P Shah (supra) has held that Directorate of Income-tax (Investigation) is an internal agency / wing of the department which works under the aegis of its controlling authority, CBDT and hence, cannot be considered to be an external source. Therefore, information received by assessing officer from Directorate of Income-tax (Investigation) is not covered by exception as contained in para 10(e) of CBDT communication (supra). The Revenue has failed to point out any mistake, much less, any mistake apparent on record, in the order of Tribunal dated 24/08/2018, sought to be recalled. We do not find any merit in the Miscellaneous Application filed by the Revenue; hence, the same is dismissed. 5. In the result, miscellaneous application is dismissed. Order pronounced in the open court on Wednesday, the 16 th day of March, 2022. Sd/- sd/- (PRAMOD KUMAR ) (VIKAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER Mumbai, Dt : 16 th March, 2022 Pavanan /True copy/ Assistant Registrar / Senior Private Secretary 4 MA No.69/MUM/2019 A.Y. 2009-10 ITAT, Mumbai Benches