HARMATSINGH KESHAJI RAO, MUMBAI V. RAJEEV KUMAR SINGH, ITO- 17(1)(5), MUMBAI

ITA 1530/MUM/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2484 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 17-03-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SMITA NAIR
• Keywords: Initiation of penalty proceedings
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) ITA No. 1530/MUM/2020 Assessment Year: 2012-13 Harmatsingh Keshaji Rao, 60, Bapu Khote Cross Lane, Opp. 2 nd Bhoiwada, Mumbai-400 003. Vs. ITO-17(1)(5), Aayakar Bhavan, Mumbai-400 007. PAN No. ADEPR 3814 J Appellant Respondent Assessee by : None Revenue by : Ms. Smita Nair, DR Date of Hearing : 23/06/2022 Date of pronouncement : 27/07/2022 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 17.10.2016 passed by the Ld. Commissioner of Income-tax (Appeals)-28, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following ground: 1. (a) On facts and circumstances of the case and in law. Ld. CIT(A) erred in confirming the action of the A.0 and approving the addition' calculated by the A.O without giving a reasonable opportunity of being heard. (b) The CIT (A) erred in confirming the addition without appreciating the understated vital facts that the assesse has conducted business activity in his saving account and so the payments for purchases cannot be eliminated. (c) The CIT (A) erred in without introspecting the bank statements which clearly shows the presence of both sales and purchases and the addition should be restricted to the gross profit only. (d) The Appellant prays that the addition of respect of alleged purchases be deleted. 2. On the facts and circumstances of the case and in law, the CIT (A). erred in dismissing the ground for the appellant's plea of withdrawal of initiation of penalty proceedings u/s 271(1) ( 2. At the outset, the Ld. Counsel of the assessee submitted that assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled its dispute and paid the taxes due under the said scheme the assessee wishes to withdraw the captioned appeal Counsel has also filed Form Nos. 5 prescribed under the Vivad Se (a) On facts and circumstances of the case and in law. Ld. CIT(A) erred in confirming the action of the A.0 and approving the addition' calculated by the A.O without giving a reasonable opportunity of being (b) The CIT (A) erred in confirming the addition without appreciating the understated vital facts that the assesse has conducted business activity in his saving account and so the payments for purchases cannot be (c) The CIT (A) erred in making an addition of 100% of cash deposits without introspecting the bank statements which clearly shows the presence of both sales and purchases and the addition should be restricted to the gross profit only. (d) The Appellant prays that the addition of entire 2882265/ respect of alleged purchases be deleted. 2. On the facts and circumstances of the case and in law, the CIT (A). erred in dismissing the ground for the appellant's plea of withdrawal of initiation of penalty proceedings u/s 271(1) (c). At the outset, the Ld. Counsel of the assessee submitted that assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled its dispute and paid the taxes due under the said scheme the assessee wishes to withdraw the captioned appeal Counsel has also filed Form Nos. 5 prescribed under the Vivad Se Harmatsingh K Rao ITA No. 1530/M/2020 2 (a) On facts and circumstances of the case and in law. Ld. CIT(A) erred in confirming the action of the A.0 and approving the addition' calculated by the A.O without giving a reasonable opportunity of being (b) The CIT (A) erred in confirming the addition without appreciating the understated vital facts that the assesse has conducted business activity in his saving account and so the payments for purchases cannot be making an addition of 100% of cash deposits without introspecting the bank statements which clearly shows the presence of both sales and purchases and the addition should be entire 2882265/- made in 2. On the facts and circumstances of the case and in law, the CIT (A). erred in dismissing the ground for the appellant's plea of withdrawal of At the outset, the Ld. Counsel of the assessee submitted that assessee has opted for Vivad Se Vishwas Scheme, 2020 and settled its dispute and paid the taxes due under the said scheme therefore, the assessee wishes to withdraw the captioned appeal. The Ld. Counsel has also filed Form Nos. 5 prescribed under the Vivad Se Vishwas Act, 2020. The relevant part under: “Now, therefore, in exercise of the powers conferred by sub (2) of section S read with section 6 of that - (a) a sum of Rs. and final settlement of tax arrear determined in the order No 358662900250521 (b) the immunity is granted subject to the provi Act, from instituting any proceeding for prosecution for any offence under the Income said enactment[as per section 6 of the Act], in respect of the tax arrear as detailed in the ta Sl No. Assessment Year/Financial Year 1. 2012-13 It is hereby clarified that making a declaration under this Act shall not amount to conceding the tax position and it shall not be lawful for the income or writ petition or special leave petit or the income- decision on the disputed issue by settling the dispute.” Vishwas Act, 2020. The relevant part in Form No. 5 is reproduced as “Now, therefore, in exercise of the powers conferred by sub (2) of section S read with section 6 of the Act, it is hereby certified (a) a sum of Rs. 829610 has been paid by the declarant towards full and final settlement of tax arrear determined in the order No 358662900250521 dated 25.05.2021 and (b) the immunity is granted subject to the provisions contained in the Act, from instituting any proceeding for prosecution for any offence under the Income-tax Act or from the imposition of penalty under the said enactment[as per section 6 of the Act], in respect of the tax arrear as detailed in the table below: Details of dispute settled (Appeal reference number) Nature of arrear (disputed tax/disputed penalty/disputed interesest/disputed fee) ITA No. 1530/Mum/2020 Disputed Tax It is hereby clarified that making a declaration under this Act shall not amount to conceding the tax position and it shall not be lawful for the income-tax authority or the declarant being a party in appeal or writ petition or special leave petition to contend that the declarant -tax authority, as the case may be, has acquiesced in the decision on the disputed issue by settling the dispute.” Harmatsingh K Rao ITA No. 1530/M/2020 3 Form No. 5 is reproduced as “Now, therefore, in exercise of the powers conferred by sub-section the Act, it is hereby certified has been paid by the declarant towards full and final settlement of tax arrear determined in the order No sions contained in the Act, from instituting any proceeding for prosecution for any offence tax Act or from the imposition of penalty under the said enactment[as per section 6 of the Act], in respect of the tax Nature of arrear penalty/disputed interesest/disputed Amount of tax arrear 1204595 It is hereby clarified that making a declaration under this Act shall not amount to conceding the tax position and it shall not be lawful tax authority or the declarant being a party in appeal ion to contend that the declarant tax authority, as the case may be, has acquiesced in the 3. In view of withdrawal of the appeal dismissed as infructuous. Order pronounced in the Court on Sd/- (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 27/07/2022 Rahul Sharma, Sr. P.S. 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. //True Copy// iew of withdrawal of the appeal by the assessee, dismissed as infructuous. pronounced in the Court on 27/07/2022. Sd/- SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, Mumbai Harmatsingh K Rao ITA No. 1530/M/2020 4 by the assessee, same is - OM PRAKASH KANT) ACCOUNTANT MEMBER (Sr. Private Secretary) ITAT, Mumbai