ITO v. Rakesh Gupta (HUF) - Taxpublishers.in

Case Laws Analysis
REFERRED Sanat Kumar v. ACIT 2019 TaxPub(DT) 5143 (Del-Trib)
REFERRED Tharakumari v. ITO 2019 TaxPub(DT) 3363 (Mad-HC)
REFERRED Udit Kalra v. ITO 2019 TaxPub(DT) 3068 (Del-HC)
REFERRED Sanjay Bimalchand Jain L/H Shantidevi Bimalchand Jain v. Pr. CIT, Nagpur & Anr. 2017 TaxPub(DT) 5257 (Bom-HC)

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The Tax Publishers2023 TaxPub(DT) 3495 (Del-Trib) IN THE ITAT DELHI N. K. BILLAIYA, A.M & ANUBHAV SHARMA, J.M. ITO v. Rakesh Gupta (HUF) ITA No. 6814/Del/2019, 6820/Del/2019, 6821/Del/2019 18 April, 2023 Appellant by: Sapna Bhatia, CIT DR Respondent by: Rajiv Khandelwal, CA ORDER *N. K. Billaiya, AM:* ITA No.6820/Del/2019, 6814/Del/2019 and 6821/Del/2019 by the revenue preferred against three separate orders of the Commissioner (Appeals)-1, Noida dated 31-12-2018 pertaining to Assessment Year.2015-16. 2. Since common issues are taken up by the revenue in all the three appeals they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. The common grounds in all the three appeals read as under:- 1. The Learned Commissioner (Appeals)-2, Noida has erred in law and facts by deciding the appeal of the asgessee without having jurisdiction over the case as the assessee in this case filed the appeal with the Commissioner (Appeals)-1, Noida whereas the same should have been filer with the jurisdictional Commissioner (Appeals), Ghaziabad. Moreover, although the date of the appellate Order is 31-12-2018, the same has been received in this office on 18.06.2019, after the compulsory retirement under section FR 56(j) of Sh. S.K. Srivastava, the then Commissioner (Appeals)-I, Noida and has also been uploaded on the ITBA after an inordinate delay of time. Therefore, order of learned Commissioner (Appeals)-I, Noida is illegal, bad in law and in violation ol CBDTs notification no. 66/2014 dated 13-11-2014 r.w. order no. G-03/2014-15 dated 15-11-2014 of Learned Pr.CCIT(CCA), Kanpur, assigning jurisdiction to Commissioner (Appeals), Ghaziabad and other CsIT(A) of UP(Weast & Uttrakhand). Although the tax effect in the case is less than the amount specified by the CBDT, the case falls in exception 10(b) of CBDT circular no. 3/2018 dated 11-7-2018. 2. Without prejudice to the above, the Learned Commissioner (Appeals)-1, Noida has Rs. 6,13,186/- erred in law and fact in deleting the addition of Rs. 19,26,622 on account of unexplained credit under section 68 of the Income Tax Act as well as addition u/s 69C of Rs. 57,799, without considering the facts brought on record. Reliance is placed on judgement of Honble Delhi High Court in the case of Udit Kalra v. ITO [ITA No. 220/2019 & CM No. 10774/2019, dt. 8-3-2019] : 2019 TaxPub(DT) 3068 (Del-HC) andof Honble Bombay High Court(Nagpur Bench)in the case of Sanjay Bimalchand Jain v. Pr. CIT [Income Tax Appeal No.18 of 2017, dt. 10-4-2017] : 2017 TaxPub(DT) 5257 (Bom-HC). 3. Without prejudice to ground no.1 above, the Learned Commissioner (Appeals)-1, Noida has overlooked the fact that the name of M/s CCL International Ltd. figured in the list of penny scrips as per reports of the Investigation Wing of the department at Kolkata and that Honble Madras High Court have upheld the disallowance of exemption u/s 10(38) in the case of Tharakumari v. ITO[Tax Case Appeal No. 128 of 2019 and C.M.P. No. 3353 of 2019, dt. 11-2-2019] : 2019 TaxPub(DT) 3363 (Mad-HC) where the shares of a company, in respect of which long term capital gain was claimed by the assessee as exempt, appeared in the data base of the Income Tax Department as penny stocks in tax evasion racket. Honble ITAT Delhi have in their recent judgement in the case of Sh. Sanat Kumar v. ACIT [ITA No. 1881/Del/2018, dt. 14-6-2019] : 2019 TaxPub(DT) 5143 (Del-Trib), Honble ITAT E-Bench, delhi also stated that no doubt assessee has meticulously completed the paper work by routing his entire investment through banking channel but the results thereof are altogether beyond human probabilities. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2023 TaxPub(DT) 3495 (Del-Trib)

IN THE ITAT DELHI

N. K. BILLAIYA, A.M & ANUBHAV SHARMA, J.M.

ITO v. Rakesh Gupta (HUF)

ITA No. 6814/Del/2019, 6820/Del/2019, 6821/Del/2019

18 April, 2023

Appellant by: Sapna Bhatia, CIT DR

Respondent by: Rajiv Khandelwal, CA

ORDER

N. K. Billaiya, AM:

ITA No.6820/Del/2019, 6814/Del/2019 and 6821/Del/2019 by the revenue preferred against three separate orders of the Commissioner (Appeals)-1, Noida dated 31-12-2018 pertaining to Assessment Year.2015-16.

2. Since common issues are taken up by the revenue in all the three appeals they were heard together and are disposed of by this common order for the sake of convenience and brevity.

3. The common grounds in all the three appeals read as under:-

1. The Learned Commissioner (Appeals)-2, Noida has erred in law and facts by deciding the appeal of the asgessee without having jurisdiction over the case as the assessee in this case filed the appeal with the Commissioner (Appeals)-1, Noida whereas the same should have been filer with the jurisdictional Commissioner (Appeals), Ghaziabad. Moreover, although the date of the appellate Order is 31-12-2018, the same has been received in this office on 18.06.2019, after the compulsory retirement under section FR 56(j) of Sh. S.K. Srivastava, the then Commissioner (Appeals)-I, Noida and has also been uploaded on the ITBA after an inordinate delay of time. Therefore, order of learned Commissioner (Appeals)-I, Noida is illegal, bad in law and in violation ol CBDTs notification no. 66/2014 dated 13-11-2014 r.w. order no. G-03/2014-15 dated 15-11-2014 of Learned Pr.CCIT(CCA), Kanpur, assigning jurisdiction to Commissioner (Appeals), Ghaziabad and other CsIT(A) of UP(Weast & Uttrakhand). Although the tax effect in the case is less than the amount specified by the CBDT, the case falls in exception 10(b) of CBDT circular no. 3/2018 dated 11-7-2018.

2. Without prejudice to the above, the Learned Commissioner (Appeals)-1, Noida has Rs. 6,13,186/- erred in law and fact in deleting the addition of Rs. 19,26,622 on account of unexplained credit under section 68 of the Income Tax Act as well as addition u/s 69C of Rs. 57,799, without considering the facts brought on record. Reliance is placed on judgement of Honble Delhi High Court in the case of Udit Kalra v. ITO [ITA No. 220/2019 & CM No. 10774/2019, dt. 8-3-2019] : 2019 TaxPub(DT) 3068 (Del-HC) andof Honble Bombay High Court(Nagpur Bench)in the case of Sanjay Bimalchand Jain v. Pr. CIT [Income Tax Appeal No.18 of 2017, dt. 10-4-2017] : 2017 TaxPub(DT) 5257 (Bom-HC).

3. Without prejudice to ground no.1 above, the Learned Commissioner (Appeals)-1, Noida has overlooked the fact that the name of M/s CCL International Ltd. figured in the list of penny scrips as per reports of the Investigation Wing of the department at Kolkata and that Honble Madras High Court have upheld the disallowance of exemption u/s 10(38) in the case of Tharakumari v. ITO[Tax Case Appeal No. 128 of 2019 and C.M.P. No. 3353 of 2019, dt. 11-2-2019] : 2019 TaxPub(DT) 3363 (Mad-HC) where the shares of a company, in respect of which long term capital gain was claimed by the assessee as exempt, appeared in the data base of the Income Tax Department as penny stocks in tax evasion racket. Honble ITAT Delhi have in their recent judgement in the case of Sh. Sanat Kumar v. ACIT [ITA No. 1881/Del/2018, dt. 14-6-2019] : 2019 TaxPub(DT) 5143 (Del-Trib), Honble ITAT E-Bench, delhi also stated that no doubt assessee has meticulously completed the paper work by routing his entire investment through banking channel but the results thereof are altogether beyond human probabilities.