ACIT, New Delhi V. M/s Bhudeva Estates Pvt. Ltd., New Delhi

MA 70/DEL/2020

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The case involves the Income Tax Department (appellant) and M/s. Bhudev Estates Pvt. Ltd. (respondent) concerning the assessment year 2005-06. The revenue filed a miscellaneous application against the Tribunal's earlier decision which had dismissed their appeal on the grounds that the tax effect was below the limit set by the CBDT. The revenue argued that the tax effect was actually above this limit, amounting to Rs.73,53,940, and sought to challenge the validity of the assessment under section 153A of the Income Tax Act. However, the Tribunal, referencing a Supreme Court decision, found no merit in recalling the earlier order and dismissed the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115942 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-02-2023
• Assessment Year: 2005-2006
• Appeal Filed On: 25-02-2020
• Other Referred Cases: Abhisar Buildwell (P) Ltd. in Civil appeal No.6580 of 2021
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Unexplained expenditure; Tax effect; Validity of assessment; Tax effect
• Section: 68; 69C; 143(3); 153A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR US, JUDICIAL MEMBER M. A. No.70/Del/2020 ( In ITA No.5999/Del/2016) Assessment Year: 2005-06 ACIT New Delhi Vs M/s. Bhudev Estates Pvt. Ltd. Flat No.4, R. R. Apartments, 3-4 Manglapuri, Mehrauli, New Delhi PAN No.AABCC3437B (APPELLANT) (RESPONDENT) Appellant by Sh. Om Prakash, Sr DR Respondent by Sh. Gautam Jain, Advocate Sh. Ajit Jha, Advocate Date of hearing: 16/06/2023 Date of Pronouncement: 16/06/2023 ORDER PER N. K. BILLAIYA, AM: This miscellaneous application by the revenue is preferred against the order of this Tribunal in ITA No.5999/Del/2016 dated 11.09.2019. 2. The grievance of the revenue read as under :- Please refer to the above noted subject. 2. In this regard, it is submitted that an appeal order vide ITA No.5999/Del/2016 dated 11.09.2019 was passed by the Hon'ble ITAT and appeal filed by the revenue has been dismissed stating that tax effect is below the limit prescribed by the CBDT. 2 3. The Ld. CIT(A) allowed one ground of the assessee wherein the assessee had challanged the validity of assessment u/sl53A of the Act. Thus, in effect, the Ld. CIT(A) has rendered the entire order u/s 153A r.w.s 143(3) as ab initio void and confirmation of some addition has become meaningless. As a effect of this issue the tax effect works out to the amount equal to the amount of tax corresponding to all the additions made in the assessment order. 3.1 From the perusal of the appeal filed by the Department, it is seen that in the grounds of appeal there is one ground (ground no. 3) relating to validity of assessment u/s l53A along with other items of additions discussed by the CIT(A) in his order. 3.2 The decision of the Hon'ble ITAT is only on the basis of Tax effect', but the tax effect of this appeal is Rs.73,53,940/- which is above the limit prescribed by the CBDT vide circular No. 17/2019 dated 08.08.2019. 4. Therefore, approval for filing of Miscellaneous Application from higher authority in the case of M/s Bhudev Estate Pvt. Ltd for the A. Y. 2005-06 has been obtained and the same is being forwarded with this application for filing of Miscellaneous Application before the Hon'ble ITAT. 3. The representatives of both the sides were heard at length. Case records carefully perused. The issues before the CIT(A) were as under :- 3. That following additions/disallowance made by the learned Deputy Commissioner of Income Tax are perse without jurisdiction since the same are not based on any incriminating material found as a result of search on the appellant company: i) Addition of Rs. 50,08,000/- representing alleged unexplained share capital received and, held to be unexplained cash credit u/s 68 of the Act. ii) Addition of Rs. 50,00,000/- representing alleged unexplained security premium received and, held to be unexplained cash credit u/s 68 of the Act. iii) Addition of Rs. 1,00,00,000/- representing alleged unexplained advance received from M/s. Surya Roshni Ltd. and, held to be unexplained cash credit u/s 68 of the Act. iv) Addition of Rs. 1,06,480/- representing alleged unexplained purchase of fixed assets, held to be unexplained expenditure u/s 69C of the Act. v) Disallowance of Rs. 38,527/- out of expenditure incurred and claimed by the appellant company. vi) Disallowance of Rs. 37,190/- out of preliminary expenditure incurred and 3 claimed by the appellant company. 4. That the learned Deputy Commissioner of Income Tax has also erred both in law and on facts in making an addition of Rs. 50,00,000/- representing alleged unexplained share capital received and, held to be unexplained cash credit u/s 68 of the Act. 5. That the learned Deputy Commissioner- of Income Tax has also erred both in law and on facts in making an addition of Rs. 50,00,000/- representing alleged unexplained security premium received and, held to be unexplained cash credit u/s 68 of the Act. 6. That the learned Deputy Commissioner of Income Tax has also erred both in law and on facts in making an addition of Rs. 1,00,00,000/- representing alleged unexplained advance received from M/s. Surya Roshni Ltd. and, held to be unexplained cash credit u/s 68 of the Act. 7. That the learned Deputy Commissioner of Income Tax has further erred both in taw and on facts in making an addition of Rs. 1,06,480/- representing alleged unexplained purchase of fixed assets, held to be unexplained expenditure u/s 69C of the Act. 8. That the learned Deputy Commissioner of Income Tax has further erred both in law and on facts in making a disallowance of sum of Rs. 38,527/- out of expenditure incurred and claimed by the appellant company. 9. That the learned Deputy Commissioner of Income Tax has further erred both in law and on facts in making a disallowance of sum of Rs. 37,190/- out of preliminary expenditure incurred and claimed by the appellant company. 10. That the learned Deputy Commissioner of Income Tax has further erred both in law and on facts in levying interest under section 234A and under section 234B of the Act which are not leviable on the facts and circumstances of the case of the appellant. It is, therefore, prayed that it be held that both the assessment 4. Ground No.4,5 and 6 were dismissed and the others were confirmed by the CIT(A). 5. Further at para-13 of his order the CIT(A) held as under :- “In view of above analysis of legal view on the issue the AO could not have proceeded to frame assessment u/s.153A in respect of year under consideration as no incriminating documents / assets have been found during search operation pertaining to this year. This ground of appeal is, therefore, allowed.” 4 6. It is the say of the DR that because of this the revenue was in appeal and the tax effect is more than Rs.50 lacs and, therefore, the order of the Tribunal dismissing the appeal of the revenue for want of tax effect need to be recall. 7. We have given a thoughtful consideration to the contents of the miscellaneous application. In our considered opinion even if there is merit in this petition of the revenue, it would be a futile exercise and waste of judicial time in recalling the impugned order of this Tribunal because the quarrel has now been settled by the Hon’ble Supreme Court in the case of Abhisar Buildwell (P) Ltd. in Civil appeal No.6580 of 2021 alongwith bunch of connected appeals filed by the revenue. Therefore, we decline to entertain this miscellaneous application by the revenue and the same is dismissed. 6. Decision announced in the open court on 16.06.2023. Sd/- Sd/- [YOGESH KUMAR US] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: .06.2023 *Neha* Copy forwarded to: 1. Appellant 2. Respondent 3. CITi 4. CIT(A) 5. DR Asst. Registrar ITAT, New Delhi