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MA 745/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6131 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-09-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Tax effect; Reason to believe
• Section: 148

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO. 745 /DEL/20 1 8 ( ITA NO. 3943 /DEL/2017) ASSESSMENT YEAR : 20 08 - 09 ACIT, CENTRAL CIRCLE - 16, NEW DELHI. VS M/S YORK H OTELS PVT. LTD., RECTANGLE - I, D - 4, SAKET DISTT. CENTRE, NEW DELHI. PAN: AAACY0345F (APP LICA NT ) (RESPONDENT) A SSESSEE BY : NONE RE VENUE BY : MS ANIMA BARNWAL, SR. DR DATE OF HEARING : 1 9 . 0 8 . 20 21 DATE OF PRONOUNCEMENT : 10 . 0 9 . 20 21 ORDER TH E REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER OF THE TRIBUNAL PASSED IN ITA NO.3943/DEL/2017 ON THE GROUND THAT T HE APPEAL FILED BY THE REVENUE WAS DISMISSED ON ACCOUNT OF LOW TAX EFFECT ALTHOUGH THE CASE IS SQUARELY COVERED UNDER EXCEPTIONAL CLAUSE (E) OF PARA 10 OF THE CBDT INSTRUCTION NO.3/2018 DATED 11 TH JULY, 2018. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE STATUTORY NOTICES ISSUED BY THE TRIBUNAL. IT WAS SEEN THAT W HEN THE ORDER OF THE TRIBUNAL WAS PASSED, THERE WAS ALSO NO APPEARANCE FROM THE SIDE OF THE ASSESSEE AND THE APPEAL FILED BY THE REVENUE WAS DISMISSED ON ACCOUNT OF LOW TAX EFFECT. THEREFORE, THE MISCELLANEOUS APPLICATION MA NO. 745 /DEL/201 8 2 FILED BY THE REVENUE IS BEING DEC IDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 3. T HE LD. DR, REFERRING TO THE MISCELLANEOUS APPLICATION, DREW THE ATTENTION OF THE BENCH TO THE CONTENTS OF THE SAME WHICH READS AS UNDER: - 1. THE ABOVE APPEAL WAS DISPOSED OF BY THE HON BLE TRIBUNAL BY ITS ORDER DATED 19TH JULY 2018. THE ABOVE APPEAL OF THE APPELLANT FOR THE ASSESSMENT YEAR 2008 - 09 WAS DISPOSED OF WITHOUT DEALING WITH THE MERIT OF THE CASE. 2. THE APPEAL OF REVENUE HAS BEEN DISMISSED BY THE HON BLE ITAT ON ACCOUNT OF TAX EFFECT LOWER THAN THE MONETARY LIMIT PRESCRIBED BY THE CBDT S INSTRUCTION NO. 03/2018 DATED 11.07.2018, HOWEVER, THE CASE IS SQUARELY COVERED UNDER EXCEPTIONAL CLAUSE (E) OF PARA 10 OF THE ABOVE MENTIONED INSTRUCTION. 3. THE TRIBUNAL HAS D ISMISSED THE APPEAL IN PARAGRAPH 3& 4 OF ITS ORDER WHICH READS AS UNDER: '2. THE LD. DR FAIRLY CONCEDED THAT THE TAX EFFECT INVOLVED IN THE APPEAL FILED BY THE REVENUE IS BELOW RS.20,00,000/THE CBDT VIDE CIRCULAR NO.03/2018 [F. NO. 279/MISC. 142/2007 - ITJ (PT.)] DATED 11.07.2018 HAS REVISED THE MONETARY LIMIT TO RS.20,00,000/ - FOR FILING OF THE APPEALS BY THE DEPARTMENT BEFORE ITAT. AS PER PARA 3 OF THE SAID CIRCULAR IT IS ALSO CLARIFIED THAT THE PENDING APPEALS OF THE DEPARTMENT BEFORE ITAT HAVING MONETARY LIMIT - OF RS.20,00,000/ - WILL BE TREATED AS WITHDRAWN. SINCE IN THE INSTANT CASE THE TAX EFFECT IS ADMITTEDLY BELOW RS.20,00,000/ - , THEREFORE, IN VIEW OF THE LATEST CBDT CIRCULAR CITED (SUPRA) THE APPEAL FILED BY THE REVENUE IS DISMISSED. 4. IN THE RESU LT, THE APPEAL FILED, BY THE REVENUE IS DISMISSED. 4. THE APPELLANT SUBMIT THAT THE SAID ORDER WAS PASSED WITHOUT GOING INTO THE MERITS OF THE CASE. 5. THE HON BLE TRIBUNAL HAS NOT GONE INTO THE MERITS OF THE CASE IN WHICH THE ISSUE OF QUASHING OF NOTIC E ISSUED U/S 148 OF THE I.T. ACT, 1961 WAS CHALLENGED. THE CASE IS SQUARELY COVERED UNDER EXCEPTIONAL CLAUSE OF CBDT INSTRUCTION NO. 03/2018 DATED 11.07.2018. FURTHERMORE, THE ORDER OF LD. CIT(A) ITSELF MENTIONS THE REASON RECORDED BY THE AO BEFORE ISSUANC E OF NOTICE U/S 148 OF THE I.T. ACT, 1961 AND THE FACT THAT REPORT OF SFIO RECEIVED BY THE AO AFTER COMPLETION OF THE ASSESSMENT PROCEEDING U/S 153C/143(3) AND THE A.O. HAS VALID REASON TO BELIEVE THAT TAXABLE INCOME HAS ESCAPED ASSESSMENT. MA NO. 745 /DEL/201 8 3 6. HENCE, THE A PPELLANT SUBMITS THAT THE HON BLE TRIBUNAL MAY RECALL ITS ORDER AND DECIDE THE CASE ON MERIT. 4. HE ACCORDINGLY SUBMITTED THAT SINCE THE APPEAL FILED BY THE REVENUE WAS DISMISSED ON ACCOUNT OF LOW TAX EFFECT , ALTHOUGH THE CASE FALLS SQUARELY UNDER THE EXCEP TIONAL CLAUSE (E) OF PARA 10 OF THE CBDT CIRCULAR NO.3/2018 DATED 11 TH JULY, 2018, THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AND THE MATER BE HEARD ON MERIT. 5. I HAVE HEARD THE LD. DR AND PERUSED THE RECORD. I FIND, THE TRIBUNAL ERRONEOUSLY DISMISSED TH E APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT ALTHOUGH THE CASE IS SQUARELY COVERED UNDER EXCEPTIONAL CLAUSE (E) OF PARA 10 OF CBDT INSTRUCTION NO.3/2018 DATED 11 TH JULY, 2018. THEREFORE, I AM OF THE CONSIDERED OPINION THAT A MISTAKE HAS CREP T IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION. I, THEREFORE, RECALL THE ORDER OF THE TRIBUNAL AND THE APPEAL IS FIXED FOR HEARING ON 25 TH OCTOBER, 2021 WHICH WAS ANNOUNCED IN THE OPEN COURT. THE REGISTRY IS DIRECTED TO ISSUE FRESH NOTICE OF HEARING FOR 25 TH OCTOBER, 2021 AS ANNOUNCED. 6. IN THE RESULT, T HE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. TH E DECISION WAS PRONOUNCED IN THE OPEN COURT ON 10 . 0 9 . 20 21 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMFBER DATED: 10 TH SEPTEMBER, 2021. DK MA NO. 745 /DEL/201 8 4 COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI