Income Tax Appellate Tribunal - Raipur
Income Tax Officer Ward, 2, Raigarh(Cg) vs Shri Bishambhar Dayal Agrawal, ... on 13 March, 2023
आयकर अपील य अ धकरण यायपीठ रायपुर म।
IN THE INCOME TAX APPELLATE TRIBUNAL,
RAIPUR BENCH, RAIPUR
BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER
AND
SHRI G D PADMAHSHALI, ACCOUNTANT MEMBER
M.A. No. 12/RPR/2019
(Arising out of ITA No. 223/RPR/2016)
नधारण वष / Assessment Year : 2010-11
The Income Tax Officer,
Ward-2, Raigarh (C.G.)
........... आवेदक/Applicant
बनाम / V/s.
Shri Bishambhar Dayal Agarwal,
Contractor, Ledeg, Pathalgaon,
Dist- Jashpur
PAN : ACLPA6294P
....... यथ / Respondent
Assessee by : Shri Veekass S Sharma, CA
Revenue by : Shri Piyush Tripathi, Sr. DR
सुनवाई क तार ख / Date of Hearing : 17.02.2023
घोषणा क तार ख / Date of Pronouncement : 13.03.2023
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ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal,
MA No.12/RPR/2019
आदे श / ORDER
PER RAVISH SOOD, JM:
The present miscellaneous application filed by the revenue arises from the order passed by the Tribunal in ITA No.223/RPR/2016 for the A.Y.2010-11 dated 06.08.2018.
2. The Ld. Authorized Representative (for short 'AR') for the assesee by filing an application dated 16.02.2023 had requested for an adjournment, for the reason that the requisite documents pertaining to the present case were not available with the assessee who had applied to the A.O for a copy of the relevant orders. However, on being informed that the mistake pointed out by the Ld. Departmental Representative (for short 'DR') was based on the fact that the Tribunal while dismissing of the appeal of the revenue, for the reason that the tax effect involved was below the threshold limit provided in CBDT Circular No.03 of 2018, as was amended by the CBDT vide F. No.279/Mise/142/2007-ITJ/(pt), dated 20.08.2018, had lost sight of the fact that the case of the assessee was reopened on the basis of an audit objection, the Ld. AR fairly sought not to press for the adjournment. On the basis of the aforesaid facts, the adjournment application dated 16.02.2023 filed by the assessee is rejected and the matter is taken up for hearing.
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ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal, MA No.12/RPR/2019
3. The Ld. Departmental Representative (for short 'DR') at the very outset of the hearing of the matter submitted that the order passed by the Tribunal suffers from a mistake which is apparent, glaring, patent and obvious from record, which, therein, renders the aforesaid order amenable for rectification u/s.254(2) of the Act. Elaborating on his aforesaid contention, it was submitted by the Ld. DR that though the captioned appeal was dismissed by the Tribunal on account of low tax effect as contemplated in CBDT Circular No.03/2018 [F. No. 279/Misc.142/ 2007/ITJ(pt)], but the fact that the case of the assessee was reopened u/s.147 of the Act pursuant to an audit objection was lost sight of while disposing off the appeal. It was, thus, submitted by the Ld. DR that as the case of the assessee falls within the realm of the exception carved out in Para 10(c) of the aforesaid CBDT Circular No.03 of 2018, as was amended by the CBDT vide F. No.279/Mise/142/2007- ITJ/(pt), dated 20.08.2018, therefore, the appeal filed by the revenue though involving a tax effect below the threshold amount contemplated in the CBDT Circular No.3/2018 (supra) was maintainable on the said count.
4. Per contra, it was averred by the Ld. AR that as the said aspect was not brought to the notice of the Tribunal during the course of 4 ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal, MA No.12/RPR/2019 hearing of the appeal, therefore, the same cannot now be made a basis u/s.254(2) of the Act.
5. We have given a thoughtful consideration to the issue and find that the department had moved the present miscellaneous application seeking recall of the order passed by the Tribunal in ITA No.223/RPR/2016 for the A.Y.2010-11 dated 06.08.2018, for the reason that the same suffers from a mistake which is apparent, glaring, patent and obvious from record which, therein, renders the same amenable for rectification u/s.254(2) of the Act, stating as under:
"In this case the, Hon'ble Tribunal dismissed the appeal filed by the Revenue pointing out that the tax effect involved is below Rs. 20,00,000/-.
The brief facts of the case are that the Assessing Officer, vide order dated 20.01.2015 passed assessment order u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 on 20.01.2015 with assessed income of Rs.40,44,752/- making addition of Rs.30,44,859/- for undisclosed investments u/s.69 of the I.T. Act, 1961, after accepting the audit objection raised by RAP dated 03.01.2014.
Aggrieved by the Assessment Order, the assessee filed an appeal before Ld. Commissioner of Income tax (Appeals). Ld. Commissioner of Income Tax (Appeals) had allowed the appeal of the assessee vide his order in Appeal No.265/2014-15 dated 28.03.2016 and deleted the addition of Rs.30,44,859/- made by Assessing Officer.
Against the order of Ld. CIT(A), the Department has filed an appeal before Hon'ble ITAT and Hon'ble ITAT vide its order in ITA No.223/RPR/2016 dated 06.08.2018 have decided the issue, taking into account the monetary limit fixed for filing of appeal before the Tribunal as per CBDT's Circular No.03/2018 dated.11.07.2018 while the merit of the case has not been examined. However in para 10(c) of this circular provides that adverse judgments relating to the issues should be contested on 5 ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal, MA No.12/RPR/2019 merits notwithstanding that the tax effects entailed is less than the monetary limits specified in para 3 above or there is not tax effect. Para 10(c) reproduced as under:
10(c) where Revenue Audit Objection is the case has been accepted by the Department, or Thus, the total tax effect involved in this case is less than 20 lakh but para 10(c) of the circular is involved. Hence, this Miscellaneous Application u/s.254(2) of the I. T. Act, 1961 is being filed before the Hon'ble Tribunal for deciding the case on merits, if approved."
6. After having given a thoughtful consideration, we find substance in the claim of the Ld. DR that as the case of the present assessee was reopened pursuant to an audit objection (copy placed on record), therefore, the maintainability of the said appeal would be saved by the exception carved out in Para 10(c) of the CBDT Circular No.3 of 2018 (supra), as was amended by the CBDT vide F. No.279/Mise/142/2007- ITJ/(pt), dated 20.08.2018 which therein, provides that despite the fact that the tax effect involved in an appeal is below the threshold limit contemplated in the aforesaid CBDT Circular No.03 of 2018 (supra), the same would still be maintainable. For the sake of clarity the Para 10(c) of the aforesaid circular is culled out as under:
"10(c) where Revenue Audit Objection is the case has been accepted by the Department, or
7. In so far the claim of the Ld. AR that as the aforesaid aspect was not brought to the notice of the Tribunal in the course of hearing of the 6 ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal, MA No.12/RPR/2019 appeal, therefore, the same could not now be allowed to form a basis for seeking rectification of the order under sub-section (2) of Section 254 of the Act, we are unable to find favour with the same. We, say so, for the reason that as the audit objection on the basis of which the case of the assessee was reopened formed part of the record, therefore, failure on the part of the Tribunal to take cognizance of the said fact would tantamount to a mistake apparent from record, which, thus would render its order on the said count amenable for rectification u/s.254(2) of the Act.
8. Considering the fact that the Tribunal vide its order passed in ITA No.223/RPR/2016 for the A.Y.2010-11 dated 06.08.2018 while dismissing the appeal of the revenue, for the reason that the tax effect therein involved was below the threshold monetary ceiling limit contemplated in CBDT Circular No.03 of 2018 (supra), had failed to take cognizance of the fact that the said case was covered by the exception provided in Para 10(c) of the CBDT Circular No.03 of 2018 (supra), as was amended by the CBDT vide F. No.279/Mise/142/2007-ITJ/(pt), dated 20.08.2018, therefore, as stated by the Ld. DR and, rightly so, the said order suffers from a mistake which is apparent, glaring, patent and obvious from record. We, thus, on the basis of our aforesaid observation 7 ITO, Ward-2 Vs. Shri Bishambhar Dayal Agarwal, MA No.12/RPR/2019 recall the order passed by the Tribunal in ITA No.223/RPR/2016 for the A.Y.2010-11 dated 06.08.2018
9. The Registry is directed to re-fix the matter for hearing on 10.04.2023 after putting both the parties to notice.
10. In the result, miscellaneous application filed by the revenue is allowed in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board.
Sd/- Sd/-
G D PADMAHSHALI RAVISH SOOD
(ACCOUNTANT MEMBER) (JUDICIAL MEMBER)
रायपुर/ RAIPUR ; दनांक / Dated : 13th March, 2023 SB आदे श क त ल प अ े षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT(Appeals), Bilaspur
4. The Pr. CIT-1, Bilaspur (C.G)
5. वभागीय त न ध, आयकर अपील य अ धकरण,रायपुर बच, रायपुर / DR, ITAT, Raipur Bench, Raipur.
6. गाड फ़ाइल / Guard File.
आदे शानस ु ार / BY ORDER, // True Copy // नजी स चव / Private Secretary आयकर अपील य अ धकरण, रायपुर / ITAT, Raipur.