ITO, - 27(1)(4), MUMBAI V. DIPAN JAYSUKHLAL MEHTA (HUF), MUMBAI

MA 73/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6496 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 13-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

MA NO 73/MUM/2020 IN ITA NO. 2566/MUM/2019 ASSESSMENT YEAR: 2014 - 15 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO . 73/MUM/2020 IN ITA NO. 2566/MUM/2019 ASSESSMENT YEAR: 2014 - 15 INCOME TAX OFFICER 27 (1)(4) .APPLICANT MUMBAI. VS. DIPAN JAYSUKHLAL MEHTA (HUF) RESPONDENT FLAT NO. 804, A - WING, SHANKESHWAR TOWER, SUDHA PARK, GHATKOPAR (E), MUMBAI 400077 [PAN: AAEHD6457J] APPEARANCES BY SUNIL DESHPANDE FOR THE APPLICANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JULY 13, 2021 DATE OF PR ONOUNCEMENT OF ORDER : JULY 20 , 2021 ORDER PER BENCH: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER SEEKS THE RECALL OF OUR ORDER DATED 21.08.2019 DISMISSING THE APPEAL AN ACCOUNT OF LOW TAX EFFECT UNDER CBDT CIRCULAR 17/2019 DATED 08.08.2019. 2. A SHORT POINT ON WHICH THE ORDER IT SOUGHT TO BE RECALLED IS ASSESSING OFFICER RELIANCE ON CIRCULAR NO. 23/2019 DATED 06.09.2019. AS IS EVIDENT FROM THE FOLLOWING OBSERVATIONS IN THE PRESENT MISCELLANEOUS APPLICATION: - IN THE ABOVE MENTIONED CASE FOR THE A.Y.2014 - 15 THE DEPARTMENT HAS FILED AN APPEAL BEFORE THE HON'BLE ITAT WHEREIN I T HAS RAISED THE FOLLOWING GROUND(S) OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C IT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.1,00,000/ - MADE BY THE ASSESSING OFFICER BEING THE DIFFERENCE BETWEEN NET SATE CONSIDERATION OF RS.84,92,200/ - OF ASIAN LAK CAPITAL & FIN LTD. AND L ONG TERM CAPITAL GAIN OF RS.83,92,200/ - WHICH WAS CLAIMED AS EXE MPT U /S. 10(38 ) OF THE ACT AND SUBSEQUENTLY DECLARED AS UNDISCLOSED INCOME UNDER IDS 2016 BY THE ASSESSES? MA NO 73/MUM/2020 IN ITA NO. 2566/MUM/2019 ASSESSMENT YEAR: 2014 - 15 PAGE 2 OF 4 2.1 IN RESPECT TO THE ABOVE GROUNDS INVOLVED FOR THE YEAR UNDER CONSIDERATION, AT PARA NO . 5, THE HON'BL E ITAT HAS OBSERVED AS UNDER: 'BEFORE PARTING, WE CLARIFY THAT IF ON A LATER DATE, THE REVENUE FINDS THAT THE TAX EFFECT IN DISPUTE IN ANY OF THE CAPTIONED APPEALS IS MORE THAN THE LIMIT PRESCRIBED IN THE CIRCULAR DATED 08.03.2019 (SUPRA), OR IT IS PROTECTED BY ANY OF THE EXCEPTIONS PR OVIDED IN PARA 10 OF THE C B DT CIRCULAR 11.07.2018 (SUPRA), IT SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THE ORDER AND REINSTITUTION OF THE APPEAL FOR ADJUDICATION ON MERITS. THE TRIBUNAL SHALL CONSIDER SUCH APPLICATIONS, IF ANY, AS PER THE EXTANT LAW. 2.2 FURTHER TO THE ABOVE, AT PARA NO.6, THE HON'BLE ITAT HAS OBSERVED AS UNDER; '6. IN CONCLUSION, BY APPLYING THE CIRCULAR DATED 08,03.2019 (SUPRA) READ WITH CIRCULAR 11.07.2018 (SUPRA), THE CAPTIONED APPEALS OF THE REVENUE ARE DISMISS ED AS WITHDRAWN/NOT PRESSED'. 2.3 IT IS PERTINENT TO MENTION THAT EXCEPT THE OBSERVATIONS OF HON'BLE ITAT AT PARA NOS. 5& 6 AS REPRODUCED ABOVE, NOTHING WAS D ISCUSSED IN THE APPELLATE ORDER FOR THE YEAR UNDER CONSIDERATION. 2.4 IN CONNECTION WITH THE ABOVE, I T IS SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS ISSUE IS RS.30,900/ - , WHICH IS BELOW THE PRESCRIBED MONETARY LIMITS AS PER BOARD'S CIRCULAR NO.17 OF 2 0 19, D T. 08.08 .2019, HOWEVER, IT FA LL S UNDER THE EXCEPTION LAID DOWN IN PARA 2 OF THE CIRCULAR NO.23/2019, DT.06.09.2019. HENCE, PRESENT MISCELLANEOUS A PPLICATION BEFORE THE HON ITAT U /S.254(2) OF THE I T,ACT,1961 IS F ILED ON THIS G R OUND WITH A REQUEST TO ADJUDICATE THE ISSUE ON MERITS. 2.5 FROM THE ABOVE FACTS, IT IS APPARENT THAT THE HON'BL E ITAT HAS NOT ADJUDICATED UPON THE GROUND OF APPEAL INVOLVED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, IT IS HEREBY PRAYED THAT THE HON'B L E BENCH MAY KINDLY ADJUDICATE THE ABOVE GROUND AND MAY BE PLEASED TO MODIFY THEIR DE CISION DATED 21.08.2019 IN ITA NO .2566 /M U M /2019 AND PASS SUCH ORDER AS MAY BE DEEMED TO BE APPROPRIATE IN THIS CASE. 2.6 I N THE LIGHT OF THE ABOVE FACTS, THE HON'BLE ITAT IS REQUESTED TO RECALL ITS ORDER IN THE INSTANT CASE TO CONSIDER THE APPEAL O N MERIT. 2.7 THE APPLICATION IS MOVED WITH PRIOR APPROVAL OF THE PR,QT - 27, MUMBAI, VIDE AUTHORIZATION MEMO NO, PR.C I T - 27/ JUDL./MA/2019 - 20, DATED : 10.02. 2020 . 3. 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. 4. WE FIND THAT THE CBDT INSTRUCTIONS WHICH ARE RELIED UPON BY THE APPLICANT ASSESSING OFFICER AS ALSO THE LEARNED DEPARTMENT REPRESENTATIVE WERE ISSUED ON 06.09.2019 WHEREAS THE TRIBUNALS ORDER WAS PASSED ON 21.08.2019. OBVIOUSLY, THEREFORE, AS ON THE POINT OF TIME WHEN THE TRIBUNAL PASSED THE SAID ORDER, THE CBDT INSTRUCTIONS RELIED UPON WERE NOT IN EXISTENCE. IN MA NO 73/MUM/2020 IN ITA NO. 2566/MUM/2019 ASSESSMENT YEAR: 2014 - 15 PAGE 3 OF 4 THIS VIEW OF THE MATTER, WE SEE NO MISTAKE ON RECORD IN THE OR DER PASSED BY THE TRIBUNAL. WE ACCORDINGLY, REJECT THE APPLICATION AS DEVOID OF LEGALLY SUSTAINABLE MERITS. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 20 TH DAY OF JULY, 2021. SD/ - SD/ - JUSTICE P.P. BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED THE 20 TH JULY , 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 MA NO 73/MUM/2020 IN ITA NO. 2566/MUM/2019 ASSESSMENT YEAR: 2014 - 15 PAGE 4 OF 4 SR. NO DESCRIPTION DATE INITIAL 1. DRAFT PREPARED BY MYSELF ON 20.7.21 2 DRAFT PLACED BEFORE AUTHOR ON 20.07.21 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR PS 6 KEPT FOR PRONOUNCEMENT ON 7 FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH