M/S SSV MARKETING PVT LTD., MUMBAI V. ITO 13(2)(4), MUMBAI

ITA 1156/MUM/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3993 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 13-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 147; 148

Judgement Text

ITA No.1156/Mum/2020 A.Y.2014-15 M/s SSV Marketing Pvt. Ltd. Vs. ITO-13(2)(4) 1 IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA No.1156/Mum/2020 (A.Y. 2014-15) M/s SSV Marketing Pvt. Ltd., 90 Aditya Industrial Estate, Link Road, Behind Eversine Mall, Malad East, Mumbai – 400064 Vs. ITO-13(2)(4) Mittal Court, Nariman Point, 3/8R, Mumbai - 400021 लेख सं./ज आइआर सं./PAN/GIR No: AAJCS2801B Appellant .. Respondent Appellant by : None Respondent by : B.K. Bagchi Date of Hearing 07.04.2022 Date of Pronouncement 25.04.2022 आदेश / O R D E R PER AMARJIT SINGH, AM: All the grounds of appeal of the assessee are pertained to the issue of confirming the penalty of Rs.5,50,000/- therefore, all these grounds of appeal are adjudicated together in this common order. The assessee has raised the following grounds: “(1) Learned A.O/CIT(A) has erred in imposing penalty of Rs.5,50,000 against the principle of equity and natural Justice. (2) Learned A.O/CIT(A)) has failed to appreciate that Donation claimed were offered back to buy peace & avoid litigation and all taxes due were paid. ITA No.1156/Mum/2020 A.Y.2014-15 M/s SSV Marketing Pvt. Ltd. Vs. ITO-13(2)(4) 2 (3) Learned A.O/CIT(A) has failed to appreciate that penalty was not leviable or was to be levied. (4) Looking at above fact we request your honour to kindly delete the penalty imposed and oblige. (5) Your appellant craves the leave to add to, alter to, or amend the grounds of appeal from time to time.” 2. The fact in brief is that on the basis of information received from the Investigation Wing that assessee had given bogus donation of Rs.10,00,000/- to School of Human Genetics & Population Health (SHG & PH), the case of the assessee was reopened. During the course of assessment proceedings the assessee company had furnished detail of donation of Rs.10,00,000/- provided to School of Human Genetics & Population Health (SHG & PH) and also submitted that it had claimed deduction of Rs.17,15,000/- u/s 35(1)(ii) of the Act i.e 175% of Rs.10,00,000/- in A.Y. 2014-15. During the course of assessment vide letter dated 06.03.2017 the assessee had offered the said donation of Rs.10,00,000/- to tax with undertaking to pay all taxes. During the course of penalty proceedings the assessee has referred the income declaration scheme and CBDT Circular No. 34 of 2016 and submitted that if assessee co-operate with department by paying of taxes then the penalty would not be levied. The A.O has not accepted the submission of the assessee stating that the voluntary disclosure income scheme provides an opportunity to persons who have not paid full taxes in the past up to F.Y. 2015-16 to declare such undisclosed income. However, this scheme shall not be applicable to the following cases : “(A) Where notices for assessment, re-assessment or search has been issued. (b) Where a search or survey has been conducted and time for issuance of notice has not expired. (c) Where information has been received by competent authority under agreement with foreign countries in respect of undisclosed assets.” ITA No.1156/Mum/2020 A.Y.2014-15 M/s SSV Marketing Pvt. Ltd. Vs. ITO-13(2)(4) 3 The voluntary disclosure income scheme was not applicable to the cases where notices for assessment/reassessment or search has been issued. In the case of the assessee notice u/s 148 was issued on 21.04.2016 on the basis of information received from the Additional DIT(Investigation), Unit -4, Kolkata that the assessee company was a beneficiary of bogus donor to claim deduction u/s 35(1)(ii) of the Act. Therefore, the A.O had concluded that assessee had furnished inaccurate particulars of income to the extent of Rs.17,50,000/- and levied minimum penalty of Rs.5,50,000/-. 3. Aggrieved, the assessee filed the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee. 4. Heard the ld. Departmental Representative and perused the material on record. The assessee’s case was reopened u/s 147 of the Act on the basis of information that bogus donation of Rs.10,00,000/- was made by it to School of Human Genetics & Population Health (SHG & PH) Kolkata, and claimed a deduction of Rs.17,50,000/- u/s 35(1)(ii) of the Act. On query the assessee had offered the said donation to tax and requested to consider the same under the Income Declaration Scheme of the Department by referring CBDT circular No. 34 of 2016. The A.O has rejected the submission of the assessee stating that benefit of circular dated 21.09.2016 were not available to the assessee since declaration was made after the issue of notice u/s 148 of the Act to the assessee and during the pendency of proceedings u/s 147 of the Act. Circular dated 21.09.2016 confers benefit on an assessee only if the declaration was made on or before the issue of notice u/s 148 of the Act. Notice u/s 147 was served on the assessee on 21.04.2016 and proceeding u/s 147 of the Act were pending, therefore, benefit of Circular dated 21.09.2016 were ITA No.1156/Mum/2020 A.Y.2014-15 M/s SSV Marketing Pvt. Ltd. Vs. ITO-13(2)(4) 4 not available to the assessee. Looking to the above facts and circumstances we don’t find any infirmity in the decision of ld. CIT(A) in sustaining the penalty levied by the A.O. Therefore, the appeal of the assessee stand dismissed. 5. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 25.04.2022 Sd/- Sd/- (PAVAN KUMAR GADALE) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 25.04.2022 PS: Rohit आदेश की े /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. संबंिधत आयकर आय / The CIT(A) 4. आयकर आय ( ) / Concerned CIT 5. िवभ ग य िति िध, आयकर य िधकरण, हमद ब द / DR, ITAT, Mumbai 6. ग $% फ ई / Guard file. आदेशानुसार/BY ORDER, स ािपत ित //True Copy// (Asst. Registrar) ITAT, Mumbai