DCIT, NEW DELHI vs. M/S MUSSORRIE TRADING CO. PVT. LTD., NEW DELHI

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ITA 4226/DEL/2016Status: DisposedITAT Delhi05 December 2019AY 2011-124 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal dismissed the appeal as the Revenue did not press it, and it was also found to be not maintainable due to the tax effect being below the prescribed monetary limit by CBDT circulars.

What were the facts?

The Revenue filed an appeal against the deletion of disallowance of capital gains by the CIT(A). The assessee argued that the tax effect was below the threshold limit for appeals as per CBDT circulars.

What were the issues?

Whether the appeal is maintainable based on the tax effect and CBDT circulars, and whether the Revenue pressed the appeal.

Which sections of the Income-tax Act were involved?

Section 254(2)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’: NEW DELHI

Before: SHRI H.S. SIDHU & SHRI ANADEE NATH MISSHRA

(A) This appeal by Revenue is filed against the order of Learned Commissioner of Income Tax (Appeals)-19, New Delhi, [“Ld. CIT(A)”, for short], dated 05/05/2016 for Assessment Year 2011-12. Grounds taken in this appeal of Revenue are as under:

“1. Whether in facts and circumstances of the case and in law, the Ld. CIT(A) is justified in deleting disallowance of capital gains of Rs. 90,77,014/- despite the fact that during the year the assessee had failed to discharge its onus by not providing separate accounts of its two portfolio i.e. ‘investment’ and ‘stock in trade’ by not disclosing of details of shares and its holding period for each portfolio separately? Page 1 of 4

ITA No.-4226/Del/2016. M/s Mussorrie Trading Co. Pvt. Ltd. 2. Whether in facts and circumstances of the case and in law, the Ld. CIT(A) is justified in not considering a legal principle that mode of book entry cannot change the nature of a receipt?

3.

Whether in facts and circumstances of the case and in law, the Ld. CIT(A) is justified in not considering a legal principle that mode of book entry cannot change the nature of a receipt?

4.

Whether in facts and circumstances of the case and in law, the Ld. CIT(A) is justified in relying on the decision of the Hon’ble High Court Gujrat in the case of CIT vs Rewa Shanker A Kothari (206) 283 ITR 338 and the Hon’ble Supreme Court decision in the case of CIT Vs Excel Industries Limited (358 ITR 495) in instant case where the assessee had not even discharge its initial onus by not providing separate account of its two portfolio i.e. investment and stock in trade?

5.

That the appellant craves leave to add, amend, alter or forgo any ground/(s) of appeal either before or at the time of hearing of the appeal.”

(B) At the outset, Learned Counsel for the assessee brought to our notice, at the time of hearing, that tax effect in this appeal is below Rs. 50,00,000/-. Both sides, [Representatives of Revenue and the Assessee] were in agreement, at the time of hearing before us, that the tax effect in the present appeal is below Rs. 50,00,000/-.

Vide recent CBDT Circular No. 17/2019 dated 08.08.2019 read with earlier CBDT Circular No. 3 of 2018, dated 11.07.2018, minimum threshold limit of tax effect of filing of appeals by Revenue in Income Tax Appellate Tribunal (“ITAT”, for short) has been enhanced to Rs. 50,00,000/-. In a subsequent clarification issued by CBDT vide F.No. 279/Misc/M-93/2018-ITJ, dated 20/08/2019, it has been clarified by CBDT that the aforesaid revised monetary limit is also applicable to all pending appeals in ITAT.

Having regard to the aforesaid, the Ld. Senior Departmental Representative for Revenue did not press the appeal. The learned Authorized Representative (“AR”, for Page 2 of 4

ITA No.-4226/Del/2016. M/s Mussorrie Trading Co. Pvt. Ltd. short) for the assessee also submitted that the appeal was not maintainable in view of the aforesaid CBDT Circular dated 08.08.2019 and 11.07.2018; and aforesaid clarification dated 20.08.2019 issued by CBDT. Therefore, this appeal is dismissed being not pressed and also being not maintainable having regard to aforesaid CBDT Circular No. 17/2019 dated 08.08.2019 read with aforesaid CBDT Circular No. 3 of 2018 in the light of aforesaid clarification dated 20/08/2019.

(C) Before leaving, we clarify that Revenue will be at liberty to approach Income Tax Appellate Tribunal U/s 254(2) of Income Tax Act, 1961 seeking recall of this order and, for restoration of this appeal if it is found that appeal of Revenue is not covered by aforesaid CBDT Circulars dated 08.08.2019 and 11.07.2018.

(D) In the result, this appeal by Revenue is dismissed. Our decision was orally pronounced in the Open Court after conclusion of hearing on the date of hearing. Now, this written order is pronounced in Open Court on 05/12/19.

Sd/- Sd/- (H.S. SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 05/12/19 Pooja/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ITA No.-4226/Del/2016. M/s Mussorrie Trading Co. Pvt. Ltd. ASSISTANT REGISTRAR ITAT NEW DELHI

Date of dictation

Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member

Date on which the approved draft comes to the Sr. PS/PS

Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT

Date on which the file goes to the Bench Clerk

Date on which the file goes to the Head Clerk

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