Income-tax Officer, Ward – 3(2), Aurangabad V. Swapnil Chandrashekar Modi, Aurangabad

MA 82/PUN/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5060 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 27-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER Miscellaneous Application No.82/PUN/2021 (arising out of ITA No.3005/PUN/2017) Assessment Year : 2014-15 ITO, Ward-1(12), Aurangabad Vs. Swapnil Chandrashekhar Modi, Plot No.17, Tara Behind Kasliwal Corner, N-2, CIDCO, Swapna Nagar, Aurangabad PAN : AWNPM8882B (Applicant) (Respondent) Miscellaneous Application No.95/PUN/2021 (arising out of ITA No.3006/PUN/2017) Assessment Year : 2014-15 ITO, Ward-1(12), Aurangabad Vs. Nikhil Chandrashekhar Modi, Plot No.17, Tara Behind Kasliwal Corner, N-2, CIDCO, Swapna Nagar, Aurangabad PAN : AWNPM9704A (Applicant) (Respondent) Assessee by : Smt. Deepa Khare Revenue by : Shri M.G. Jasnani Date of Hearing : 04-03-2022 Date of Pronouncement : 07-03-2022 ORDER PER R.S.SYAL, VP : These two Miscellaneous applications filed by the Revenue seek recalling of the order in the Revenue’s appeals which were dismissed on account of low tax effect. Swapnil C. Modi & Nikhil C. Modi 2 2. A case has been made out that the additions deleted in these cases by the ld. CIT(A) pertained to penny stock companies. It was submitted that the CBDT vide its Circular No.23/2019 dated 06-09-2019 and the Office Memorandum dated 16.9.2019 has clarified that where organized tax evasion scam is noticed through bogus long term capital gain, and the CIT(A) has allowed relief, then the Revenue would be entitled to argue the appeal on merits notwithstanding the low tax effect as per the circular. The ld. DR submitted that the facts of the instant case are squarely covered by the mandate of the CBDT Circular No.23/2019 and Office Memorandum and hence, the order of the Tribunal, dismissing the Revenue’s appeals on account of low tax effect, be recalled. 3. In the opposition, the ld. AR submitted that similar issue has been considered and decided by the Hon’ble Gujarat High Court in Pr. CIT Vs. Anand Natwarlal Sharda (2021) 180 taxmann.com 376 in assessee’s favour preventing the recall of orders. 4. Having heard both the sides and gone through the relevant material on record, it is seen that the Hon’ble Gujarat High Court in Anand Natwarlal Sharda (supra) took cognizance of the CBDT Circular dt. 6-09-2019 and the Office Memorandum dt. 16-09- Swapnil C. Modi & Nikhil C. Modi 3 2019. After considering the fact that the appeal of the Revenue was dismissed by the Tribunal vide its order dated 14-08-2019 on account of low tax effect, which was prior to the issuance of Circular and OM dated 06/16-09-2019, the Hon’ble High Court held that the said circular shall apply to all the appeals filed on or before 16-09-2019 by the Revenue. Since the order dismissing the Revenue’s appeals in that case was passed on 14-08-2019 and the Revenue thereafter filed M.A. praying for the recall of the order which got dismissed, the Hon’ble High Court approved the action of the Tribunal in dismissing the Revenue’s M.A. 5. Turning to the facts of the instant cases, it is seen that both the orders were passed on 29-08-2019, which date is prior to the date of 16-09-2019. Respectfully following the precedent, we dismiss the Revenue’s M.As. 6. In the result, both the Miscellaneous applications stand dismissed. Order pronounced in the Open Court on 07 th March, 2022. Sd/- Sd/- ( PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT प ु णे Pune; दनांक Dated : 07 th March, 2022 Satish Swapnil C. Modi & Nikhil C. Modi 4 आदेश क त ल प अ े षत / Copy of the Order is forwarded to : 1. अपीलाथ / The Appellant; 2. यथ / The Respondent; 3. आयकर आयु (अपील) / The CIT (Appeals)-2, Aurangabad 4. The Pr. CIT-2, Aurangabad 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, पुणे “A” / DR ‘A’, ITAT, Pune; 6. गाड फाईल / Guard file. // True copy // आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 04-03-2022 Sr.PS 2. Draft placed before author 07-03-2022 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *