ACIT, New Delhi V. M/s. K.A. Promoters & Developers (P) Ltd., New Delhi

MA 82/DEL/2018

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 2269 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANAGING
• Assessee Lawyers: AJAY BHAGWANI
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “FRIDAY-D”, NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA No.82/Del/2018 IN (ITA No. 2541/Del/2013) (ASSESSMENT YEAR : 2009-10) AND ITA No.2541/Del/2013 (ASSESSMENT YEAR : 2009-10) ACIT, CENTRAL CIRCLE-32, vs. M/S K.A. PROMOTERS & NEW DELHI DEVELOPERS PVT. LTD. M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI (PAN: AACCK1447L) (APPELLANT) (RESPONDENT) Assessee by : Sh. Ajay Bhagwani, CA Revenue by : Sh. Mrinal Kumar Das, Sr. DR. Date of Hearing : 01.04.2022 Date of Pronouncement : 01.04.2022 O R D E R PER AMIT SHUKLA, JM : By way of this Misc. Application Revenue seeks recall of the order of this Tribunal passed in I.T.A. No. 2541/Del/2013 (AY- 2009-10) vide Order dated 04.09.2017. The said appeal was dismissed by following the Tribunal’s order in 2 other group cases of the assessee on merit of the case and also by following the decision taken in assessment year 2006-07 in assessee’s own case in ITA No. 1677/Del/2013. Ld. DR for the Revenue reiterated the contentions raised in the Misc. Application dated 6.2.2018 wherein, it was stated as under:- “Sub:- Miscellaneous Application 254(2) of I.T. Act, 1961 with respect to order of the Hon’ble ITAT in ITA No. 2541/Del/2013 for A.Y. 2009-10 dated 04.09.2017 in the case of M/s KA Promoters & Developers Pvt. Ltd. – Regarding Kindly refer to the above. 2. In this regard, the present Miscellaneous Application may be filed u/s. 254(2) of the Income Tax Act, 1961 against the Hon’ble ITAT order of the Hon’ble ITAT in ITA No. 2541/Del/2013 for A.Y. 2009-10 dated 4.9.2017 in the case of M/s KA Promoters & Developers Pvt. Ltd. 3. The decision of the Hon’ble ITAT is not acceptable, as the ITAT did not examine the terms of collaboration agreement and facts of the case and did not consider the incrimination documents seized during the search operation. The Hon’ble ITAT has put its reliance on the decision of the ITAT order ITA No. 1752/Del/2013 dated 16.7.2015 in the case of M/s Westland Developers Pvt. Ltd., for the A.Y. 2006-07 and ITA no. 1674/Del/2013 and 1765/Del/2013 dated 31.10.2014 in the case of M/s IAG Promoter & Developers (P) Ltd., for the AY 2008-09. 4. The Hon’ble ITAT did not examine the terms of collaboration agreement and facts of the case. The assessee has wrongly pleaded in the case of Westland Developers Pvt. Ltd., that it was being paid Rs. 35,000/- per acre as reimbursement expenses by Countrywide Promoters Pvt. Ltd. (Collaborate & Flagship concern of BPTP) and addition was deleted as no claim of expenditure was filed by the assessee. A similar plea has been taken in Countrywide Promoters, which is a misrepresentation of the facts. The entire group of BPTP has evaded the clutches of the Department by managing favourable judgement from the Appellate Authorities. This is despite the fact that several incriminating documents were seized during the search and have been discussed at length in the order of the AO. 5. The Hon’ble ITAT wrongly upheld the order of the CIT(A) and concluded that the Revenue had no grievance as the CIT(A) did not delete the addition of the AO. The CIT(A), in fact, reduced the addition of the AO, wrongly holding that the interest was paid only on the extended period of cheques. During the search and seizure operation in the group of BPTP several incriminating documents were seized by the Department and the Hon’ble ITAT may decide the issues in this matter after examination of the seized material on record. The Hon’ble ITAT is the final fact-finding authority 3 and was required to go into the reasons for paying the interest on PDCs and additional payments made to the venders. The other group companies are taking the plea in tribunal on the basis of this case. 6. In view of the above, it is therefore earnestly requested to accept the Misc. Application of the Revenue in the due interest of justice.” 2. Ld. DR submitted that the contents of the Misc. Application filed by the Revenue are self explanatory and accordingly requested for recall of the order passed by the Tribunal. 3. Ld. A.R. for the assessee on the other hand, opposed the Misc. Application filed by the Revenue. 4. We have heard both the parties and perused the records. In the facts and circumstances of the case and in the interest of justice, we find considerable force in the contention of the ld. DR for recalling the order of the Tribunal. We therefore, recall the order of the Tribunal dated 4.09.2017 passed in I.T.A. No. 2541/Del/2013 (AY- 2009-10) and fix the Revenue’s I.T.A. No. 2541/Del/2013 (AY- 2009-10) for hearing today i.e. 01.04.2022. In the result, the instant Misc. Application filed by the Revenue stands allowed. ITA NO. 2541/DEL/2013 (AY – 2009-10) 5. This appeal by the Revenue for the assessment year 2006-07 is directed against the order of Ld. CIT(A)-XXXIII, New Delhi dated 17.12.2012. 6. Learned Counsel for the assessee submitted that the tax effect in the appeal of the Revenue is below Rs. 50 lakhs. The CBDT in its Circular No.17/2019 dated 8 th August, 2019 has revised the monetary limit for filing of the departmental appeals to the ITAT at Rs. 50 lakhs. It has been clarified that the said Circular is applicable even to pending appeals. 7. Learned Sr. DR agreed that the tax effect in this appeal of the Revenue is below Rs. 50 lakhs. 4 8. In view of the above position, we deem it proper to dismiss the appeal of the Revenue in the light of the Circular No.17/2019 of the CBDT dated 8 th August, 2019, as not maintainable. However, if on a later date, the Revenue finds that the tax effect in dispute in the aforesaid appeal is more than the limit prescribed or it is protected by any of the exceptions provided in the CBDT Circular, 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 application, as per the extant law. 9. In the result, in view of the aforesaid discussion, the Revenue’s appeal stands dismissed. Above decision was pronounced in the presence of both the parties in the Open Court on 01.04.2022. Sd/- Sd/- (R.K. PANDA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 01.04.2022 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI. 5