Dy. Commissioner of Income Tax, Lucknow V. Smt. Malvika Suri, Lucknow

MA 8/LKW/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8026 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 268A

Judgement Text

M.A. No.08/Lkw/2020 (in I.T.A. No.370/Lkw/2016) Assessment Year: 2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW (THROUGH VIRTUAL HEARING) BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER M.A. No.08/LKW/2020 (in I.T.A. No.370/Lkw/2016) Assessment Year:2012-13 Dy.Commissioner of Income Tax-4, Lucknow. vs. Malvika Suri, B-138, Nirala Nagar, Lucknow. [PAN:AJWPS7302N] (Applicant) (Respondent) O R D E R Per Sanjay Arora, A.M. This Order deals with a MiscellaneousPetition by the Revenue in respect of an order dated 22/08/2019by the Tribunal dismissing,inter alia, the Revenue’s captioned appeal in view of section 268A of the Income Tax Act, 1961 (‘the Act’ hereinafter), i.e., on account of low tax-effect, in terms of the extant Circulars by the Central Board of Direct Taxes (‘the Board’) thereunder. 2.1 None appeared for and on behalf of the assessee-respondent when the instant Miscellaneous Application (MA) was called out for hearing, nor has any adjournment been sought. However, it was observed by the Bench that the Revenue has, and very fairly, filed Forms 3, 4& 5 issued by it to the assessee under the Direct Tax Vivad se Vishwas Rules, 2020, i.e., in pursuance to the Appellant by Shri Ajay Kumar, Sr. D.R. Respondent by None Date of hearing 12/11/2021 Date of pronouncement 22/11/2021 M.A. No.08/Lkw/2020 (in I.T.A. No.370/Lkw/2016) Assessment Year: 2012-13 2 assessee’s application/declaration under section 4 of the DTVsV Act, 2020 qua the Revenue’s instant MA. 2.2 Section 268A of the Act provides for an appellate authority, specified therein, including the Appellate Tribunal, to, while hearing an appeal, etc. preferred before it by the Revenue, have regard to the monetary limits as may be fixed by the Board from time to time by way of Circular, Instruction, Order, etc. with a view to regulate the filing of appeals,references, etc. by the Revenue. The Revenue’s appeal was dismissed by the Tribunal as not maintainable in terms of the Board Circular No. 17/2019, dated 08/8/2019 read with Circular No. 3/2018, dated 11/7/2018, issued u/s. 268A. The Revenue has vide its’ instant MA sought a recall of the impugned order and restoration of its’ appeal in view of the Circular No. 23 of 2019, dated 06/09/2019 (copy on record),again issued u/s. 268A, drawing an exception to any Circular issued by the Board u/s. 268A specifying the monetary limits, i.e., in cases of organized tax evasion activity, as may be specified by the Board by way of a special order. Vide O.M. dated 16/09/2019 (F.No.279/Misc./M-93/2018-ITJ[Pt.]), also placed on record, the Board has, in terms of its’ Circular No. 23/2019, specified appeals involving bogus claims of LTCG/STCL through penny stocks by the assessees. Reliance is also placed by the Revenue on the order in Asst. CIT vs. Subhash Gupta (in MA No. 122/Hyd/2019, dated 01/11/2019) by the Hyderabad Bench of the Tribunal, recalling the Revenue’s appeal as beingmaintainable before itfor a decision on merits. 2.3 The DTVsV Act provides for the settlement of disputes pending before different appellate forums, including the Appellate Tribunal, by the assessees, by paying a part (defined) of the tax under dispute in those appeals. The same includes appeals by the Revenue as well. The assessee-respondent has settled the dispute under reference by paying the full amount of tax payable under the said Act on 28/12/2020 (at Rs.19,01,461) and, accordingly, has been issued a M.A. No.08/Lkw/2020 (in I.T.A. No.370/Lkw/2016) Assessment Year: 2012-13 3 certificatedated 07/01/2021 in Form 5, signifying the said settlement. The said Act further provides for an automatic vacationof the relevant appeal pending adjudication on such settlement. The Revenue’s instant MA, in view of the assessee’s application under DTVsV Act, since accepted by the Revenue, survives no longer for consideration. This is as even if its’ MA is accepted, restoring its’ appeal for a decision on merits by the Tribunal, the same obtains no longer; the tax dispute, in view of its settlement under the DTVsV Act, having attained closure. No prejudice is also caused to the assessee-respondent, who has, perhaps in anticipation ofa recall of the Revenue’s appeal by the Tribunal in pursuance of its’ instant MA, i.e., in view of Circular No. 23/2019 r/w O.M. dated 16/09/2019, sought the settlement of her tax dispute under reference, and which process has attained finality. 2.4 The Revenue’s instant MA, in view of the foregoing, is dismissed as of no consequence and, thus, as not liable to be decided. 3. In the result, the Miscellaneous Application by the Revenue is dismissed as infructuous. Order pronounced in the open court on 22/11/2021 Sd/- Sd/- (A. D. Jain) (Sanjay Arora) Vice President Accountant Member Dated:22/11/2021 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. The Concerned Pr.CIT/CIT 4. The CIT(A) 5. Sr. D.R., I.T.A.T., Lucknow Assistant Registrar