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Facts
The Revenue appealed against the order of the Addl./JCIT which deleted additions made by the AO. The additions were related to fictitious profits of Rs. 2,97,454/- made through client code modification and Rs. 5,949/- as commission paid for acquiring fictitious profit entries. The assessee had filed her return declaring income, but it was later found that fictitious profits were created by brokers. The case was re-opened, and the AO made additions under Section 68 and Section 69C.
Held
The Tribunal observed that the Revenue's appeal was against the order of the CIT(A) who had allowed the assessee's appeal. After considering the circulars on filing appeals, the Tribunal found that none of the exceptions specified in the circulars were fulfilled in this case. Therefore, the Tribunal dismissed the Revenue's appeal.
Key Issues
Whether the CIT(A) erred in deleting the additions made by the AO, and whether the Revenue's appeal is maintainable in light of CBDT circulars regarding monetary limits for filing appeals.
Sections Cited
250, 139, 68, 69C, 143(3), 147, 148, 268A, 201(1A), 115JB, 115JC, 10(23C), 12A, 12AA, 12AB, 263, 158AB
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Income Tax Appellate Tribunal, JAIPUR BENCH “SMC”, JAIPUR
Before: SHRI GAGAN GOYAL & SHRI NARINDER KUMAR
This appeal by the revenue is directed against the order of Addl./JCIT (A)- 2dated 10.12.2024 passed u/s. 250 of the Income Tax Act, 1961 (in short ‘the Act’). The revenue has raised the following grounds of appeal: -
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in allowing assessee's appeal without appreciating the fact that the AO has recorded reasons after analysing the information available on records?
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.2,97,454/- made by the AO u/s. 68 of the Act on account of fictitious profit by the assessee by way of client code modification without appreciating the fact that the transaction(s) was prearranged and was sham as well as was carried out in collusion with the brokers?
3. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO of Rs. 5,949/- under section 69C of the Act of 1961 on account of commission paid for acquiring fictitious profit entries? f 4. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the additions made by the AO without appreciating the facts elaborated by the AO in assessment order and evidences on record.
5. The appellant craves leave or reserves right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.
2. The brief facts of the case are that the assessee filed her return of income u/s. 139 of the Act on 09.12.2011 declaring total income at Rs. 4,63,620/- as income from business and other sources. It was gathered by the department that fictitious profits and losses were created by some brokers by misusing the Client Code Modification (CCM) facility. The brokers were alleged to have indulged in transferring the fictitious losses to different clients to reduce the tax liability against the commission ranging from 0.5% to 2%. In the case of the assessee there was an information that fictitious commodity profit of Rs. 20,29,200/- was earned, but not disclosed in the ITR. Case of the assessee was re-opened and a notice u/s. 148 of the Act was issued on 28.03.2018. In compliance to this notice the assessee requested to treat the original return as return filed in compliance to section 148 of the Act vide letter dated: 20.07.2018. Ultimately, the case of the assessee was assessed after making an addition of Rs. 2,97,454/- u/s. 68 of the Act alongwith Rs. 5,949/- as commission paid u/s. 69C of the Act. The assessee being aggrieved with the same preferred an appeal before the Ld. Addl./JCIT (A)- 2, Nagpur, who in turn allowed the appeal of the assessee and deleted the additions made by the AO. Now, the Revenue being aggrieved with the same preferred the present appeal before us.
3. We have gone through the order of the AO passed u/s. 143(3) r.w.s. 147 of the Act, order of the Ld. Addl./JCIT (A)-2, Nagpur passed u/s. 250 of the Act and submissions of the assessee alongwith grounds taken by the Revenue. We find it imperative to adhere the notification/circulars issued by the CBDT from time to time for filing of appeal by the department before ITAT/High Court and Supreme Court. Same are reproduced as under:
CIRCULAR NO. 23 OF 2019 [F.NO.279/MISC./M-93/2018-ITJ(PT.)] SECTION 268A OF THE INCOME-TAX ACT, 1961 - FILING OF APPEALS OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORITY - EXCEPTION TO MONETARY LIMITS FOR FILING APPEALS SPECIFIED IN ANY CIRCULAR ISSUED UNDER SAID SECTION CIRCULAR NO. 23 OF 2019 [F.NO.279/MISC./M-93/2018-ITJ(PT.)], DATED 6-9-2019 Reference is invited to the Circulars issued from time-to-time by Central Board of Direct Taxes (the Board) under section 268A of the Income-tax Act, 1961 (the Act), for laying down monetary limits and other conditions for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/appeals before Supreme Court.
2. Several references have been received by the Board that in large number of cases where organised tax-evasion scam is noticed through bogus Long-Term Capital Gain (LTCG)/Short Term Capital Loss (STCL) on penny stocks and department is unable to pursue the cases in higher judicial fora on account of enhanced monetary limits. It has been reported that in large number of cases. ITATs and High Court have recognized the unique modus operandi involved in such scam and have passed judgments in favour of the revenue. However, in cases where some appellate fora have not given due consideration to position of law or facts investigated by the department, there is no remedy available with the department for filing further appeal in view of the prescribed monetary limits.
3. In this context, Board has decided that notwithstanding anything contained in any circular issued u/s. 268A specifying monetary limits for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/appeals before Supreme Court, appeals may be filed on merits as an exception to said circular, where Board, by way of special order direct filing of appeal on merit in cases involved in organised tax evasion activity. CIRCULAR NO. 9/2024 [F. NO. 279/MISC./M-74/2024-ITJ] SECTION 268A OF THE INCOME-TAX ACT, 1961 - FILING OF APPEAL OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORITY - ENHANCEMENT OF MONETARY LIMITS FOR FILING OF APPEALS BY DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HIGH COURT AND SLPs/APPEALS BEFORE SUPREME COURT - MEASURES FOR REDUCING LITIGATION - AMENDMENT IN CIRCULAR NO. 5/2024 [F. NO. 279/MISC.142/2007-ITJ(PT.)], DATED 15-3- 2024 CIRCULAR NO. 9/2024 [F. NO. 279/MISC./M-74/2024-ITJ] DATED 17-9-2024 Reference is invited to Circular No 5/2024 (F.No.279/Misc.l42/2007-ITJ(PT.)), dated 15-3-2024 of Central Board of Direct Taxes (the 'Board') vide which monetary limits for filing of income tax appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLP/appeals before Supreme Court have been specified. Further, exceptions to the monetary limits were also specified vide paras 3.1 and 3.2 of the said Circular.
2. As a step towards management of litigation, it has been decided by the Board to revise the monetary limits for filing of appeals in Income-tax cases as stated in Para 4.1 of the aforementioned Circular as follows:
Sl. No. Appeals/SLPs in Income-tax matters Monetary Limit (Tax effect in Rs.)
1. Before Income Tax Appellate Tribunal 60 lakhs
2. Before High Court 2 crores
3. Before Supreme Court 5 crores
3. Monetary limits given in paragraph 2 above with regard to filing appeal/SLP shall be applicable to all cases including those relating to TDS/TCS under the Income-tax Act, 1961 with exceptions as per paras 3.1 and 3.2 of Circular No 5/2024, dated 15-3-2024, where the decision to appeal/file SLP shall be taken on merits, without regard to the tax effect and the monetary limits.
4. It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case. The officers concerned shall keep in mind the overall objective of reducing unnecessary litigation and providing certainty to taxpayers on their Income-tax assessments while taking a decision regarding filing an appeal.
5. The modifications shall come into effect from the date of issue of this Circular. This Circular will apply to SLPs/appeals to be filed henceforth in SC/HCs/Tribunal. It shall also apply to the SLPs/ appeals pending before Supreme Court/High Courts/Tribunal, which may accordingly be withdrawn.
The above may be brought to the notice of all concerned.
7. This issues under section 268 A of the Income-tax Act, 1961. Divya Chaudhary Deputy Secretary (ITJ) CBDT, New Delhi CIRCULAR NO. 5/2024 [F. NO. 279/MISC.142/2007-ITJ(PT.)] SECTION 268A OF THE INCOME-TAX ACT, 1961 - FILING OF APPEAL OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORITY - FILING OF APPEALS BY DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HIGH COURT AND SLPs/APPEALS BEFORE SUPREME COURT - MEASURES FOR REDUCING LITIGATION CIRCULAR NO. 5/2024 [F. NO. 279/MISC.142/2007-ITJ(PT.)], DATED 15-3-2024 [AS AMENDED BY CIRCULAR NO. 9/2024 [F.NO. 279/MISC./M-74/2024-ITJ] DATED 17-9-2024 Ref 1: Circular No. 3/2018, dated 11-7-2018 Ref 2: Circular No. 17/2019, dated 8-8-2019 Ref 3: Board's letter in F.No. 279/Misc. 142/2007-ITJ (Pt), dated 20-8-2018 Reference is invited to the above wherein monetary limits and other conditions for filing Departmental appeals under the Income-tax Act, 1961 (hereinafter referred to as the Act) before Income Tax Appellate Tribunals ('ITAT'), Hon'ble High Courts ('HCs') and Special Leave Petitions ('SLPs')/appeals before Hon'ble Supreme Court ('SC') were specified by the Central Board of Direct Taxes ('CBDT' or 'Board').
In supersession of the above referred communications issued by CBDT, the following may be noted in respect of departmental appeals to be filed before ITATs and HCs and SLPs/appeals before SC: — 3.1 Monetary limits given in paragraph 4 with regard to filing appeal/SLP shall be applicable to all cases including those relating to TDS/TCS under the Act with the following exceptions where the decision to appeal/file SLP shall be taken on merits, without regard to the tax effect and the monetary limits: —
a. Where any provision of the Act or the Rules or notification issued thereunder has been held to be constitutionally invalid, or b. Where any order, notification, instruction or circular of the Board or the Government has been held to be illegal or ultra vires the Act or otherwise constitutionally invalid, or c. Where the assessment is based on information in respect of any offence alleged to have been committed under any other law received from any of the law enforcement or intelligence agencies such as CBI, ED, DRI, SFIO, NIA, NCB, DGGI, state law enforcement agencies such as State Police, State Vigilance Bureau, State Anti- Corruption Bureau, State Excise Department, State Sales/Commercial Taxes or GST Department, or d. Where the case is one in which prosecution has been filed by the Department in the relevant case and the trial is pending in any Court or conviction order has been passed and the same has not been compounded, or e. Where strictures/adverse comments have been passed and/or cost has been levied against the Department of Revenue, CBDT or their officers, or f. Where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under sections 10(23C), 12A/12AA/12AB of the Act, order passed u/s 263 of the Act etc. The reference to cases involving sections referred here, where it is not possible to quantify tax effect or tax effect is not involved, is for the purpose of illustration only. g. Where addition relates to undisclosed foreign income/undisclosed foreign assets
(including financial assets)/undisclosed foreign bank account, or h. Cases involving organized tax evasion including cases of bogus capital gain/loss through penny stocks and cases of accommodation entries, or i. Where mandated by a Court's directions, or j. Writ matters, or k. Matters related to wealth tax, fringe benefit tax, equalization levy and any matter other than the Income Tax Act, or l. In respect of litigation arising out of disputes related to TDS/TCS matters in both domestic and international taxation charges: - i. Where dispute relates to the determination of the nature of transaction such that the liability to deduct TDS/TCS thereon or otherwise is under question, or ii. Appeals of International taxation charges where the dispute relates to the applicability of the provisions of a Double Taxation Avoidance Agreement or otherwise m. Any other case or class of cases where in the opinion of the Board it is necessary to contest in the interest of justice or revenue and specified so by a circular issued by Board in this regard.
3.2 Attention is drawn to Circular No. 8/2023 issued vide F.No. 279/Misc./M-93/2018-ITJ(Pt.), dated 31-5-2023 in respect of deferral of appeals u/s 158AB of the Act. Exceptions in such cases operate as follows: a. When judicial finality is achieved in favour of Revenue in the 'other case', appeal in the 'relevant case' is contested on merits subsequent to the decision in the 'other case' irrespective of the extant monetary limits. b. If the judicial outcome in the 'other case' is not in favour of Revenue and is not accepted by the Department, appeal against the same may be contested on merits in the 'other case' irrespective of the extant monetary limits, to arrive at judicial finality.
4.1 Appeals/SLPs, not falling in the exceptions as detailed in para 3 above, shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:
Sl. No. Appeals/SLP in Income-tax matters Monetary Limit (Tax effect in Rs.)
Before Income Tax Appellate Tribunal 60 lakhs
2. Before High Court 2 Crores
Before Supreme Court 5 Crores 4.2 It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case. The officers concerned shall keep in mind the overall objective of reducing unnecessary litigation and providing certainty to taxpayers on their Income-tax assessments while taking a decision regarding filing an appeal. 5.1 For this purpose, 'tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as 'disputed issues'). Further, 'tax effect' shall be tax including applicable surcharge and cess. However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 5.2 Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of tax effect', tax on the total income assessed shall be computed as per the following formula-(A-B) + (C-D) Where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JC was reduced by the amount of disputed issues under the said provisions: However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D. 5.3 The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 4.1. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 4.1. Further, even in the case of composite order of any High Court or appellate authority which involves more than one assessment year and common issues in more than one assessment year, no appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 4.1. In case where a composite order/judgement involves more than one assessee. each assessee shall be dealt with separately. It is clarified that the contents of this paragraph are subject to para 3.2, above. 5.4 For calculating the tax effect of cases involving TDS/TCS, the cumulative effect, of all orders passed for an assessment year of a deductor, shall be taken into account and shall include interest u/s 201(1A) of the Act. 6.1 In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr. Commissioner of Income-tax/ Commissioner of Income-tax shall specifically record that, "Even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in the CBDT Circular dated". 6.2 Further, in such cases, there will be no presumption that the Income Tax Department has acquiesced in the decision on the disputed issues. The Income Tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.
In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to the notice of the Tribunal/Court the provisions of sub section (4) of section 268A of the Act which read as under: "(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case."
As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr. CsIT/CsIT must be maintained in a systematic manner for easy retrieval. In cases where appeals are not being filed due to low tax effect despite the judgment not being acceptable on merits or appeals are being filed despite low tax effect in view of exceptions, the Pr. CIT/CIT shall submit a monthly report, to the CIT(J)/Addl./Jt. CIT(J) office, as per Annexures-A1 and A2, respectively of CBDT's Instruction No. 1/2024, dated 9-2-2024 (issued in F.No. 279/Misc./33/2014-ITJ). Further, the CIT(J)/Addl/Jt. CIT(J) office shall collate and disseminate the departmental stand, as regards filing of appeals, in respect of the issues involved in such appeals, within the region.
The above may be brought to the notice of all concerned.
This issues under section 268A of the Act and shall come into effect from the date of issue of this Circular. This Circular will apply to SLPs/appeals to be filed henceforth before the SC/HCs/Tribunals. Tanay Sharma Jt.CIT(OSD)-ITJ, CBDT
In view of the above circulars issued time to time by the Central Board of Direct Taxes (CBDT) vis-à-vis the facts of the case, it is observed that none of the conditions specified in the Circulars in the form of exception has been fulfilled.
We have gone though the order of the Ld. PCIT-2, Jaipur also, directing the AO for filing the appeal. There also no certification has been done complying with the Board’s Circulars mentioned (supra). In addition to the above there was no loss claimed by the assessee, rather, a positive income has been declared and allegation of set-off of income in the guise of any manipulation is not established against the assessee. We do not find any error in the order of the first appellate authority. In view of the above, grounds raised by the Revenue are dismissed.
In the result, the appeal of the revenue is dismissed The Order is pronounced in the open court on the 28th day of July2025. Sd/- Sd/- (NARINDER KUMAR) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Jaipur, िदनांक/Dated: 28/07/2025 Copy of the Order forwarded to: 1. अपीलाथ�/The Appellant , 2. �ितवादी/ The Respondent. आयकर आयु� CIT 3. 4. िवभागीय �ितिनिध, आय.अपी.अिध., Sr.DR., ITAT, 5. गाड� फाइल/Guard file.