LATE MR. NAZIM MANEKIA, MUMBAI V. DCIT 18(3), MUMBAI

ITA 1097/MUM/2012

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 8838 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNIL S DESH
• Assessee Lawyers: RITU PANJABI A R S
• Keywords: Unexplained investment; Competent authority; Condonation of delay
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE S HRI RAJESH KUMAR (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 1097/MUM/2012 ASSESSMENT Y EAR: 2004 - 05 LATE MR. NAZIM MANEKIA, 3, LANDMARK SENAPATI BAPART MARG, MAHIM (W), MUMBAI - 400016 PAN: AACPM9913 K VS. THE COMMISSIONER OF INCOME TAX (APPEALS) 29, C - 10, 7 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HIRO RAI & MS. RITU PANJABI (A R S ) REVENUE BY : SHRI SUNIL S. DESHPANDE (DR) DATE OF HEARING: 28/12 /2020 DATE OF PRONOUNCEMENT: 30 / 12 /2020 O R D E R PER RAM LAL NEGI, JM THE APPELLANT/ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 02.11.2011 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 29 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2004 - 05 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE PENALTY ORDER PASSED U/ S 271 (1) (C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUND S : - 1. CONFIRMING THE PENALTY LEVIED U/S. 271 (1 )(C ) OF THE INCOME TAX ACT I N REGARD TO THE ADDITIONS CONFIRMED BY CIT (A). 2. CONFIRMING THE PENALTY WITH REFERENCE TO : 2 ITA NO. 1097 / MUM/2012 ASSESSMENT YEAR: 2004 - 05 A) ADDITION TO INCOME FROM HOUSE PROPERTY 4,20,000/ - B) ADDITION TO INCOME FROM OTHER SOURCES - UNEXPLAINED INVESTMENT IN SHARES OF NESTLE 4,59,422/ - C) ADDITION TO INCOME FROM LONG TERM CAPITAL GAIN ON ITC SHARES 4,36, 136/ - D) ADDITION TO INCOME FROM LONG TERM CAPITAL GAIN ON RELIANCE INDUSTRIES LTD. SHARES 31, 147/ - E) ADDITION TO INCOME FROM OTHER SOURCES - INVESTMENT IN DCB SHARES 6,48,000/ - F) ADDITION TO INCOME FROM OTHER SOURCES - INVESTMENT IN TVS MOTOR LTD. SHARES 2,56,500/ - 3. CONFIRMING THE PENALTY GENERALLY WITHOUT REFERRING TO THE FOLLOWING ADDITIONS TO THE INCOME CONFIRMED BY CIT (A) A) ADDITION ON ACCOUNT OF DIFFERENCE I N THE OPENING BALANCE OF CAPITAL ACCOUNT 84, 917/ - B) ADDITION TO INCOME FROM LONG TERM CAPITAL GAIN ON NESTLE SHARES 5,59,2 10/ - C) ADDITION TO INCOME FROM SHORT TERM CAPITAL GAIN ON SHARES OF SALORA INTERNATIONAL LTD. 1,20,385/ - D) ADDITION TO INCOME FROM SHORT TERM CAPITAL GAIN ON SHARES OF WIMCO 2,629/ - E) DISALLOWANCE OF DEDUCTION U/S. SOD 9,035/ - 3. AT THE OUTSET, THE L D . COUNSEL FOR THE APPELLANT/ ASSESSEE SUBMITTED THAT ASSESSEE HAS OPTED TO SETTLE THE DISPUTE UNDER VIVAD SE VISHW AS ACT, 2020, THEREFORE THE APPEAL MAY BE KEPT IN ABEYANCE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE THE AFORESAID SUBMISSIONS MADE BY THE LD. COUNSEL. 5. I N THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS . ACIT , TCA NO 372 OF 2020 THE HONBLE MAD RAS HIGH COURT HAS DISMISSED THE APPEAL OF THE ASSESSEE 3 ITA NO. 1097 / MUM/2012 ASSESSMENT YEAR: 2004 - 05 AS WITHDRAWN IN WHICH THE COUNSEL HAD MADE THE SIMILAR SUBMISSIONS BEFORE THE HONBLE COURT. THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE AS UNDER: - 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSES SEE, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME (VVS SCHEME FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. I. 4. IT MA Y NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RE SOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, T HE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) DISPUTED TAX HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A - C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CASE, WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND M ANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. 4 ITA NO. 1097 / MUM/2012 ASSESSMENT YEAR: 2004 - 05 SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RESTORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHA LL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETI TION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AN D PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 6. IN THE LIGHT OF THE SAID JUDGMENT, THE LD. COUNSEL FURTHER SUBMITTED THAT THE PRESEN T APPEAL MAY BE DISPOSED OF IN TERMS OF THE DECISION OF THE HONBLE HIGH COURT. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS. ACIT (SUPRA) , WE DISMISS THE PRESENT APPEAL AS WITHDRA WN . HOWEVER, THE APPELLANT/ASSESSEE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL AS DISCUSSED BY THE HONBLE MADRAS HIGH COURT IN PARAGRAPH 7 OF THE JUDGMENT. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 200 4 - 05 IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 30 TH DECEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( RAJESH KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 30 / 1 2 /2020 5 ITA NO. 1097 / MUM/2012 ASSESSMENT YEAR: 2004 - 05 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI