DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(4), MUMBAI V. SUNITA OMPRAKASH SINGH, MUMBAI

MA 870/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6961 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMALATA
• Keywords: Bogus purchase; Tax effect

Judgement Text

P A G E | 1 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, M UMBAI BEFORE SHRI R.C.SHARMA, AM AND SHRI RAVISH SOOD, JM M.A. NO S. 869 - 871 /MUM/2017 (ARISING OUT OF ITA NO S. 5529, 5531 & 5532 /MUM/2016 ) ( / ASSESSMENT YEAR S:2006 - 07, 2009 - 10 & 2010 - 11 ) THE DCIT, CENTRAL CIRCLE - 1(4), ROOM NO. - 902, OLD CGO, ANNEXE, M.K. ROAD, MUMBAI - 400020, / VS. SUNITA OMPRAKASH SINGH FLAT NO. - 502, A WING, NEPTUNE DOSTI ESTATE, S.M. ROAD, WADALA (E), MUMBAI - 400038 ./ ./ PAN NO. AAIPS6919E ( / REVENUE ) : ( / ASSESSEE ) / REVENUE BY : MS. N. HEMALATA, D .R / ASSESSEE BY : SHRI DHARMESH SHAH , A .R / DATE OF HEARING : 20.04.2018 / DATE OF PRONOUNCEMENT : 13 .07.2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: ORDER U/S 254(2) THE PRESENT SET OF MISCELLANEOUS APPLICATION S FILED BY THE REVENUE APPLICANT UNDER SEC.254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), ARISES FROM THE COMPOSITE ORDER PASSED BY THE TRIBUNAL UNDER SEC.254(1) OF THE ACT IN THE CASE OF CIT, CENTRAL CIRCLE - 1(4), MUMBAI VS. M/S SUNITA OM P RAKASH SINGH, MUMBAI FOR A.YS. 2006 - 07, 2009 - 10 AND 2010 - 11 IN ITA NOS. 5529, 5531 & 5532/MUM/2016, RESPECTIVELY, DATED 19.05.2017. P A G E | 2 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH 2. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) AT THE VERY OUTSET OF THE HEARING OF THE APPLICATION SUBMITTED THAT THE ORDER OF THE TRIBUNAL DISMISSING THE APPEALS OF THE REVENUE FOR A.Y. 2006 - 07, 2009 - 10 AND 2010 - 11 SUFFERED FROM A MISTAKE APPARENT FROM RECORD WHICH THEREIN RENDERED THE SAME AMENABLE FOR RECTIFICATION UNDER SEC.254(2) OF THE ACT. THE LD. D .R SUBMITTED THAT THE TRIBUNAL HAD DISMISSED THE APPEALS FILED BY THE REVENUE BY RELYING ON THE CBDT CIRCULAR 21/2015, DATED 10.12.2015, WHICH CON TEMPLATES THAT NO APPEAL SHALL BE FILED BY THE REVENUE BEFORE THE TRIBUNAL IN CASE THE TAX EFFECT DOES NOT EXCEED RS.10 LAC. THE LD. D.R SUBMITTED THAT IN THE CASE OF THE PRESENT ASSESSEE THE CIT(A) HAD BY WAY OF A COMPOSITE ORDER DISPOSED OFF THE APPEALS OF THE ASSESSEE FOR 4 YEARS, VIDE HIS ORDER DAT ED 29.06.2016, AS UNDER: - A.Y. ADDITION ON A/C OF BOGUS PURCHASE ASSESSED INCOME RELIEF ALLOWED BY THE LD. CIT(A) ADOPTING AVERAGE G.P. TAX - EFFECT ON WHICH APPEAL U/S 253 FILED 2006 - 07 25,75,642 28,08,783 24,59,738 7,37,921 2007 - 08 52,36,634 59,59,124 50,06,222 15,01,867 2009 - 10 16,38,918 25,04,615 15,56,972 4,67,092 2010 - 11 15,43,479 25,98,198 14,38,522 4,31,557 IT WAS SUBMITTED BY THE LD. D.R THAT THE REVENUE BEING AGGRIEVED BY THE RELIEF GRANTED BY THE CIT(A) HAD CAR RIED ALL OF THE AFOREMENTIONED FOUR YEARS IN APPEAL BEFORE THE TRIBUNAL. THE LD. D.R AVERRED THAT AS THE TAX EFFECT INVOLVED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2007 - 08 EXCEEDED AN AMOUNT OF RS.10 LAC AS PRESCRIBED IN THE CBDT CIRCULAR NO. 21/2015, DATED 10.12.2015, THEREFORE, THE APPEAL S IN THE REMAINING 3 YEARS VIZ. A.YS. 2006 - 07, 2009 - 10 AND 2010 - 11 WHICH THOUGH WERE BELOW THE PRESCRIBED MONETARY LIMIT, INVOLVING THE SAME ISSUE AS WAS THERE IN THE ASSESSEES CASE FOR A.Y. 2007 - 08, WE RE ALSO CARRIED IN APPEAL BEFORE THE TRIBUNAL. THE LD. D.R SUBMITTED THAT THE APPEALS IN THE AFORESAID THREE YEARS WHICH WERE FILED BY THE REVENUE BEFORE THE TRIBUNAL, IN THE BACKDROP OF THE AFORESAID FACTUAL P A G E | 3 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH POSITION WERE CLEAR LY MAINTAINABLE IN VIEW OF THE P ARA 5 OF THE CBDT CIRCULAR NO. 21/2015, DATED 10.12 .2015, WHICH READS AS UNDER: .....HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON I SSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN W HICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED..... ON THE BASIS OF THE AFORESAID CONTENTIONS IT WAS THE CLAIM OF THE LD. D.R THAT AS THE APPEALS FILED BY THE REVENUE FOR AYS 2006 - 07, 2009 - 10 AND 2010 - 11 WERE CLEARLY MAINTAINABLE AS PER PARA NO. 5 OF CBDT CIRCULAR NO. 21/2015, DATED 10.12.2015, THUS THE ORDER PASSED BY THE TRIBUNAL DISMISSING THE SAID RESPECTIVE APPEALS ON ACCOUNT OF LOW TAX EFFECT SUFFERS FROM A MISTAKE WHICH IS CLEAR, APPARENT, PATENT AND OBVIOUS FROM RECORD. IT WAS THUS AVERRE D BY THE LD. D.R THAT THE ORDER PASSED BY THE TRIBUNAL MAY BE RECALLED FOR FRESH ADJUDICATION ON MERITS. PER CONTRA, THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) SUBMITTED THAT AS THE REVENUE HAD FAILED TO PLACE ON RECORD THE SAID FACT DURING THE CO URSE OF HEARING OF THE APPEAL, HENCE THE ORDER PASSED BY THE TRIBUNAL DISMISSING THE APPEALS ON ACCOUNT OF LOW TAX EFFECT AS PER THE CBDT CIRCULAR NO. 21/2015, DATED 10.12.2015 CANNOT BE SAID TO BE SUFFERING FROM A MISTAKE APPARENT FROM RECORD. ALTERNATIVE LY, IT WAS SUBMITTED BY THE LD. A.R THAT EVEN OTHERWISE THE APPEAL OF THE REVENUE FOR A.Y 2007 - 08 WAS DISMISSED BY A COORDINATE BENCH OF THE TRIBUNAL, VIZ. ITAT, MUMBAI BENCH H, MUMBAI IN THE CASE OF DY. CIT, CIRCULAR 1 - (4), MUMBAI VS. M/S SUNITA OM P RAK ASH SINGH (ITA NO. 5 530/MUM/2016, DATED 13.09.2017) (COPY PLACED ON RECORD). THE LD. A.R TAKING US THROUGH THE OBSERVATIONS OF THE TRIBUNAL , SUBMITTED THAT NOW WHEN IT WAS CLAIMED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION THAT COMMON ISSUE WERE INVO LVED IN THE AFOREMENTIONED APPEALS, THEREFORE, NOW WHEN THE APPEAL OF THE REVENUE FOR A.Y 2007 - 08 STANDS DISMISSED, HENCE ON THE SIMILAR FOOTING THE REMAINING THREE APPEALS OF THE REVENUE FOR THE AYS. 2006 - 07, 2009 - 10 AND 2010 - 11 WERE ALSO LIABLE TO BE DISMISSED. P A G E | 4 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH 3. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES. WE FIND THAT IT REMAINS AS A MATTER OF FACT THAT THE CIT(A) HAD BY WAY OF A COMPOSITE ORDER, DATED 29.06.2016 DISPOSED OFF 4 APPEALS OF THE ASSESSEE FO R A.YS 2006 - 07 TO 2010 - 11. THE APPEALS OF THE REVENUE FOR AY 2006 - 07, 2009 - 10 AND 2010 - 11 WERE DISMISSED BY THE TRIBUNAL, VIDE ITS COMPOSITE ORDER DATED 19.05.2017, VIZ. DCIT CENTRAL CIRCLE - 1(4), MUMBAI VS. M/S SUNITA OM P RAKASH SINGH (ITA NO. 5529, 5531 AND 5532/MUM/2016) FOR THE REASON THAT THE SAME WERE COVER ED BY THE MONETARY CEILING OF RS.10 LAC AS PRESCRIBED IN THE CBDT CIRCULAR 21/2015, DATED 10.12.2015. WE MAY HEREIN OBSERVE THAT THE FACT THAT THE REVENUE HAD CARRIE D THE ORDER OF THE CIT(A) IN THE ASSESSEES CASE FOR A.Y 2007 - 08 WAS NOT BROUGHT TO OUR NOTICE BY EITHER OF THE PARTIES DURING THE COURSE OF THE HEARING OF THE APPEAL. WE ARE OF THE CONSIDERED VIEW THAT AS THE REVENUE HAD ASSAILED THE ORDER PASSED BY THE CIT(A) IN THE CASE OF THE ASSESSEE FOR A.Y 2007 - 08 BE FORE THE TRIBUNAL, THUS AS PER P ARA 5 OF THE CBDT CIRCULAR NO. 21/2015, DATED 10.12.2015, IT REMAINED WELL WITHIN ITS RIGHT TO HAVE CARRIED THE ORDER PASSED BY THE CIT(A) FOR A.YS. 2006 - 07, 2009 - 10 AND 2010 - 11 IN APPEAL BEFORE THE TRIBUN AL, NOTWITHSTANDING THE LOW TAX EFFECT INVOLVED IN EACH OF THE SAID RESPECTIVE ORDERS. WE ARE OF THE CONSIDERED VIEW THAT NON CONSIDERATION OF THE FACT THAT THE REVENUE HAD FILED AN APPEAL AGAINST THE ORDER PASSED BY THE CIT(A) IN THE CASE OF THE ASSESSEE FOR A.Y 2007 - 08 RENDERS THE ORDER PASSED WHILE DISPOSING OFF THE APPEAL OF THE REVENUE FOR A.YS. 2006 - 07, 2009 - 10 AND 2010 - 11 IN ITA NOS. 5529, 5531 AND 5532/MUM/2016 AS SUFFER ING FROM A MISTAKE WHICH IS GLARING, APPARENT, PATENT AND OBVIOUS FROM RECORD, R ENDERING IT AMENABLE FOR RECTIFICATION UNDER SEC.254(2) OF THE ACT. BEFORE PARTING , WE MAY HEREIN OBSERVE THAT THO UGH THE LD. A.R HAD BROUGHT TO OUR NOTICE THAT THE APPEAL OF THE REVENUE FOR A.Y 2007 - 08 STANDS DISMISSED BY A COORDINATE BENCH OF THE TRIBUNAL, HOWEVER WE ARE OF THE CONSIDERED VIEW THAT AS THE EXTENT OF THE SIMILARITY OF THE FAC TS INVOLVED IN THE SAID ORDER AGAINST THOSE INVOLVED IN THE AFOREMENTIONED THREE YEARS VIZ. A.Y. 2006 - 07, 2009 - 10 AND 2010 - 11 C AN ONLY BE LOOKED INTO IN THE COURSE OF REGULAR HEARING OF THE APPEAL, THEREFORE, P A G E | 5 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH IN ALL FAIRNESS WE RECALL THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 5529, 5531 AND 5532/MUM/2016 FOR A.Y. 2006 - 07, 2009 - 10 AND 2010 - 11. THE RESPECTIVE APPLICATIONS FILED BY THE REVEN UE ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. 4. THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED ON 13 .07.2018 SD/ - SD/ - (R.C. SHARMA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; 13 .07.2018 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 6 M.A. NOS. 869 - 871 A.YS. 2006 - 07, 2009 - 10 & 2010 - 11 (ARISING OUT OF ITA NOS. 5529, 5531 & 5532/MUM/2016) THE DCIT, CENTRAL CIRCLE - 1(4) VS. SUNITA OMPRAKASH SINGH