N.S.N. JEWELLERS P.LTD, MUMBAI V. DCIT 8(2), MUMBAI

ITA 1018/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84610 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Deemed dividend

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI , !' $ $ $ $ % & ' , !' ( BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./I .T.A. NO. 1018/MUM/2013 ( ) ) ) ) / ASSESSMENT YEAR :2007-08 M/S. N.S.N. JEWELLERS PVT. LTD., PLOT NO. 124, 1 ST FLOOR, 17 TH ROAD, MIDC, ANDHERI (E), MUMBAI-400 093 / VS. THE DCIT-8(2), MUMBAI ./I .T.A. NO. 5359/MUM/2013 ( ) ) ) ) / ASSESSMENT YEAR :2007-08 THE DCIT-8(2), MUMBAI / VS. M/S. N.S.N. JEWELLERS PVT. LTD., PLOT NO. 124, 1 ST FLOOR, 17 TH ROAD, MIDC, ANDHERI (E), MUMBAI-400 093 '* ./ +, ./ PAN/GIR NO. : AACCN 0544R ( *- / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / ASSESSEE BY: SHRI PRAMOD KUMAR PARIDA ./*- 1 0 / DEPARTMENT BY: SHRI PRAMOD KUMAR PARIDA 1 %2 / DATE OF HEARING :10.12.2014 34) 1 %2 / DATE OF PRONOUNCEMENT :22.12.2014 !& / O R D E R ITA NOS. 5359 & 1018/M/2013 2 PER N.K. BILLAIYA, AM: THESE TWO APPEALS BY THE ASSESSEE AND THE REVENUE ARE AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A) PERTAINING TO A.Y.2007-08. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 1018/M/2013 ASSESSEES APPEAL 2. THE APPEAL IS LATE BY ONE DAY. THE ASSESSEE HAS EXPLAINED THE REASONS FOR THE DELAY SUPPORTED BY AN AFFIDAVIT. 3. WE HAVE CAREFULLY PERUSED THE CAUSE FOR THE DELA Y AND WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY REASON ABLE AND JUST CAUSE FOR NOT FILING THE APPEAL ON TIME. THE DELAY IS AC CORDINGLY CONDONED. 4. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE U/S. 2(22)(E) OF THE A CT . 5. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS REC EIVED AMOUNT TOTALING TO RS. 93.50 LAKHS FROM M/S. SUN JEWELS INDIA PVT. LTD. IN WHICH THE ASSESSEE IS HOLDING 61.25% SHARES. THE AO WAS OF T HE FIRM BELIEF THAT PROVISIONS OF SEC. 2(22)(E) OF THE ACT ARE APPLICAB LE ON THE FACTS OF THE CASE. THE AO FURTHER OBSERVED THAT HIS PREDECESSOR IN OFFICE HAS TREATED THE SIMILAR AMOUNT AS INCOME U/S. 2(22)(E) OF THE A CT IN ASSESSMENT YEAR 2006-07. THE AO ACCORDINGLY ADDED RS. 93.50 LAKHS AS DEEMED DIVIDEND. ITA NOS. 5359 & 1018/M/2013 3 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) OBSERVED THAT IN A.Y. 2006-07, IS PREDECESSOR HAS TREATED THE TRA NSACTION RESULTING INTO DEEMED DIVIDEND, FOLLOWING THE ORDER OF THE EARLIER YEAR, THE LD. CIT(A) CONFIRMED THE FINDINGS OF THE AO. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STAT ED THAT IN A.Y. 2006-07, THE TRIBUNAL IN ITA NO. 5021/M/09 HAS DELE TED THE ADDITION MADE U/S.2(22)(E) OF THE ACT. THE LD. COUNSEL FURT HER STATED THAT THE ORDER OF THE TRIBUNAL HAS BEEN CONFIRMED BY THE HON BLE JURISDICTIONAL HIGH COURT IN ITA NO. 2312 OF 2011. 8. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BR ING ANY DISTINGUISHING FACTS/DECISION. 9. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL. THE ADDITIONS ARE BASED ON THE FINDINGS OF EARLIER ASSESSMENT YEAR. WE FIN D THAT THE TRIBUNAL IN A.Y. 2006-07 (SUPRA) HAVE DELETED THE ADDITION WHIC H HAS BEEN CONFIRMED BY THE HONBLE HIGH COURT, MUMBAI. THE ISSUE STAND S SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO. 5359/M/2013 REVENUES APPEAL 10. THIS APPEAL BY THE REVENUE IS AGAINST THE DELET ION OF THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. ITA NOS. 5359 & 1018/M/2013 4 11. FACTS OF THE CASE ARE THAT DURING THE ASSESSMEN T PROCEEDINGS, THE AO HAS TREATED RS. 93.50 LAKHS AS DEEMED DIVIDEND O F THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND THE PENALTY WAS ACCORDINGLY LEVIED. 12. THE LD. CIT(A) HAS DELETED THE PENALTY BECAUSE THE QUANTUM ADDITION IN A.Y. 2006-07 HAS BEEN DELETED BY THE TR IBUNAL VIDE ITA NO. 5021/M/09. THE ADDITION DURING THE YEAR UNDER CONS IDERATION WAS FOUND TO BE MADE ON SIMILAR LINES AS WERE MADE IN A.Y. 20 06-07. 13. THE REVENUE IS AGGRIEVED BY THIS FINDINGS OF TH E LD. CIT(A). THE QUANTUM ADDITION FOR THE YEAR UNDER CONSIDERATION H AS ALSO BEEN DELETED BY US QUA ITA NO. 1018/M/13. SINCE THE VERY BASIS FOR LEVY OF PENALTY HAS BEEN REMOVED, WE DO NOT FIND ANY REASON TO INTE RFERE WITH THE FINDINGS OF THE LD. CIT(A). 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2014 SD/- SD/- (AMIT SHUKLA ) (N.K. BILLAIYA) !' /JUDICIAL MEMBER !' / ACCOUNTANT MEMBER MUMBAI; 5! DATED : 22 ND DECEMBER, 2014 . . ./ RJ , SR. PS ITA NOS. 5359 & 1018/M/2013 5 !& !& !& !& 1 11 1 .% .% .% .% 6)% 6)% 6)% 6)% / COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 89 .% , , / DR, ITAT, MUMBAI 6. 9: ; / GUARD FILE. !& !& !& !& / BY ORDER, /% .% //TRUE COPY// < << < / = = = = + + + + (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI