DCIT - CC- 7 (4), MUMBAI V. SANGEETA MEHTA, MUMBAI

MA 90/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6497 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 21-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Tax effect
• Section: 143(3); 13; 147; 68; 148

Judgement Text

MA NO 90/MUM/2020 IN ITA NO. 1089/MUM/2019 ASSESSMENT YEAR: 2012 - 13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO . 90/MUM/2020 IN ITA NO. 1089/MUM/2019 ASSESSMENT YEAR: 2012 - 13 DEPUTY COMMISSIONER OF INCOME TAX - CC 7(4) .APPLICANT MUMBAI. VS. SMT. SANGEETA PARAG MEHTA RESPONDENT 114, JOLLY BHAVAN - I, 10, NEW MARINE LINES, MUMBAI 400020. [PAN: AANPM8170E] APPEARANCES BY SUNIL DESHPANDE FOR THE APPLICANT PRAKASH JOTWANI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JULY 13, 2021 DATE OF PRO NOUNCEMENT OF ORDER : JULY 20 , 2021 ORDER PER BENCH: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER SEEKS THE RECALL OF OUR ORDER DATED 21.08.2019 DISMISSING THE APPEAL AN ACCOUNT OF LOW TAX EFFECT UNDER CBDT CIRCULAR 17/2019 DATED 08.08.2019. 2. A SHORT POINT ON WHICH THE ORDER IT SOUGHT TO BE RECALLED IS ASSESSING OFFICER RELIANCE ON CIRCULAR NO. 23/2019 DATED 06.09.2019. AS IS EVIDENT FROM THE FOLLOWING OBSERVATIONS IN THE PRESENT MISCELLANEOUS APPLICATION: - THE APPLICANT SUBMITS THAT THE HON'BLE ITAT HAS WITHDRAW THE APPEAL SUO - MOTO IN THE CASE OF SANGEETA PARAG MEHTA. IN IT A NO. R92/MUM/2019 FOR A.Y. 2012 - 13 DATED 21.08.2019. 2. THE GROUND OF APPEAL IN THE AFORESAID APPEAL BEFORE THE ITAT WAS AS FOLLOWS: 1, 'ON THE FACT AND CIRCUMSTANCES OF THE CASE, THE LEARNED GT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,12,97,407/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE I.T. ACT, 1961/ - WITHOUT APPRECIATING MA NO 90/MUM/2020 IN ITA NO. 1089/MUM/2019 ASSESSMENT YEAR: 2012 - 13 PAGE 2 OF 3 THE FACT THAT THE ASSESAEE FAILED TO DISCHARGE THE ONUS CAST UPON IT TO PROVE THAT THE LTCG CLAIMED AS EXEMPT U/S 1G[38) WAS GENUINE' 2. 'ON THE FEET AND CIRCUMSTANCES OF THE CASE, THE LO \ GT[ A] HAS ERRED IN DELETING THE ADDITION OF RS, 1,12,97,4077 - MADE BY THE AO WITHOUT APPRECIATING THE FACT THAT THERE WAS ABNORMAL RISE IN THE PRICE OF SHARES OF SCRIP M/S KARMA ISPAT LTD, WHICH AGAINST THE HUMAN PROBABILITY IN VIEW OF THE FACT THAT THE COMPA NY WAS NEITHER MAKING ANY PR OFIT NOR DECLARED ANY DIVIDEND. 3. 'ON THE FACT AND CIRCUMSTANCES OF THE CASE, THE LEARNED C1T(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,12,97 ,407 / - MADE BY THE AO AN ACCO UNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE IT. ACT 1 96 1 WITHOUT APPRECIATING TH E FACT THAT THE HON'BLE SUPREME COURT IN THE CASE SUMATI DAYAL VS CIT (1995) 214 1TR 801(SC) HAS HELD GENUINENESS COULD VALIDITY BE RESTED ON THE GROUND OF PRINCIPLE OF PREPONDERANCE OF HUMAN POSSIBILITIES WHICH FORM A VALID GROUND OR PARAMETER FOR DETERMINING THE GENUINENESS.' FACT OF THE CASE: THE ASSESSES IS AN INDIVIDUAL FILED ITS RETURN OF INCOME ELECTRONICALLY FOR A.Y. 2012 - 13 ON 31.03.2013 DECLARING TOTAL INCOME AT RS .6,60,060/ - ORDER U/S. 143(3) OF THE INCOME TAX ACT WAS PASSED ON 05.0 1.2015 DETERMINING TOTAL OF RS. 7 ,27,810/. THEREAFTER, NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE AND RE - ASSESSMENT PROCEEDINGS U/S 147 R.W.S. 143(3) WERE COMPLETED ON 31.12 - 2017 AND D ETERMINING TOTAL INCOME OF RS.1, 72,81 , 860/ - DURING TH E ASSESSMENT PROCEEDING, THE AO MADE AN ADDITION OF BOGUS LTCG OF RS. 1,65,54,054/ - U/S 68 OF THE I. T. DECISION OF I TAT THE ITAT HAS WITHDRAW THE APPEAL SUO - MNTO DATED 21.08,2019, THE CAPTIONED APPEAL IN 1TA N0.0892/MUM/2019 AND 34 APPEAL [AS PER ANNEXURE 1 ) PREFERRED BY THE REVENUE, HAS LISTED BY THE REGISTRY BEFORE THE BENCH ON THE GROUND THAT THEY DO NOT SURVIVE FOR CONSIDERATION IN VIEW OF THE CBDT CIRCULAR NO. 17/2019 DATED 8 TH AUGUST, 2019. FURTHER, AS PER PARA 5 OF THE HO NBLE ITAT ORDER, BEFORE PARTING, WE CLARIFY THAT IF ON 3 LATER DATE, THE REVENUE FINDS THAT THE TAX EFFECT IN DISPUTE IN ANY OF TTIE CAPTIONED APPEALS IS MORE THAN LIMIT PRESCRIBED IN THE CIRCULAR DATED 08.082019 (SUPRA), OR IT IS PROTECTED BY ANY OF THE EXCEPT IONS PROVIDED IN PARA 10 OF THE CBDT CIRCULAR 11.07.2018 (SUPRA), IT SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THE ORDER AND RE INSTITUTION OF THE APPEAL FOR ADJUDICATION ON MERITS. THE TRIBUNAL SHALL CONSIDER SUCH APPLICATIONS, IF ANY, AS PER THE EXTANT LAW. HOWEVER , THIS CASES FALL UNDER EXCEPTION TO MONETARY LIMITS FOR FIFING APPEALS SPECIFIED AS PER CBDT CIRCULAR NO. 23 OF 2019 DATED 06.09.2019. MA NO 90/MUM/2020 IN ITA NO. 1089/MUM/2019 ASSESSMENT YEAR: 2012 - 13 PAGE 3 OF 3 3 . WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. WE FIND THAT THE CBDT INSTRUCTIONS WHICH ARE RELIED UPON BY THE APPLICANT ASSESSING OFFICER AS ALSO THE LEARNED DEPARTMENT REPRESENTATIVE WERE ISSUED ON 06.09.2019 WHEREAS THE TRIBUNALS ORDER WAS PASSED ON 21.08.2019. OBVIOUSLY, THEREFORE, AS ON THE POINT OF TIME WHEN THE TRIBUNAL PASSED THE SAID ORDER, THE CBDT INSTRUCTIONS RELIED UPON WERE NOT IN EXISTENCE. IN THIS VIEW OF THE MATTER, WE SEE NO MISTAKE ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL. WE ACCORDINGLY, REJECT THE APPLICATION AS DEVOID OF LEGAL LY SUSTAINABLE MERITS. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 20 TH DAY OF JULY, 2021. SD/ - SD/ - JUSTICE P.P. BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED THE 20 TH JULY , 2021 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI