ATLAS TOUR & TRAVELS, MUMBAI V. ACIT CEN CIR 45, MUMBAI

ITA 2075/MUM/2011

• Counselvise Citation: 207519914 RSA 2011
• Duration Of Justice: 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-01-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: USHA NAIR
• Keywords: Search and seizure
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, MUMBAI. BEFORE SHRI B.R.MITTAL, JUDICIAL MEMBER AND PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NOS.2075, 2076 & 2077/ MUM/2011 ASSESSMENT YEARS: 2004-05, 2005-06 & 2006-07 ATLAS TOUR & TRAVELS P.LTD., .. APPELLANT SHOP NO.2, 53 HAJI MAHAL MAHAMMED ALI ROAD, MUMBAI-23. PA NO.AAAFA 2152 R VS ACIT, CENT. CIRCLE 45 .. RESPONDEN T AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. APPEARANCES: DEEPAK TRALSHAWALA, FOR THE APPELLANT USHA NAIR , FOR THE RESPONDENT DATE OF HEARING : 12.1.2012 DATE OF PRONOUNCEMENT : 20 .1.2012 O R D E R PER BENCH: 1. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF THE CIT(A)-38, MUMBAI, IN THE MATTER OF PENALTY UNDER S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEARS 2004-05 TO 2006-07, RESPECTIVELY. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY IS IN THE TRAVEL BUSINESS AND UNDERTAKES HAJ AND UMRAH PILGRIMAGE, IN ADDITION TO REGULAR AIRLINE TICKETING BUSINESS. A SEARCH AND SEIZURE PROCEEDINGS WAS CAR RIED ON 21.3.2006 IN THE CASE OF THE ASSESSEE AND ITS GROUP CONCERN. DURING THE ASS ESSMENT PROCEEDINGS, THE I.T.A NOS.2075, 2076 & 2077/ MUM/2011 ASSESSMENT YEARS: 2004-05, 2005-06 & 2006-07 2 ASSESSING OFFICER NOTICED THAT THE ASSESSEE WAS CLA IMING PAYMENT OF EXTRA COMMISSION AMOUNTING TO RS.4,95,000, RS.10,10,150 A ND RS.29,50,600 FOR THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07, RESP ECTIVELY TO FREELANCERS/SUB- AGENT BUT DURING THE SEARCH ENQUIRIES, THE ASSESSEE DID NOT PRODUCE ANY OF THESE SUB-AGENT NOR FILED CONFIRMATION. IT WAS IN THIS B ACKDROP THAT THE ASSESSING OFFICER CONCLUDED THAT THE CLAIMS OF PAYMENT OF COMMISSION TOWARDS THE SERVICES RENDERED BY THE SUBAGENTS WERE NOT GENUINE AND THE COMMISSIO N PAYMENTS WERE DISALLOWED. THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEE DINGS UNDER SECTION 271(1)(C) AND AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, P ENALTY OF RS.1,77,581, RS.3,69,639 AND RS.9,78,025 WAS LEVIED FOR THE ASSE SSMENT YEARS 2004-05, 2005-06 AND RS.2006-07, RESPECTIVELY. AGGRIEVED, THE ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. 3. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US 4. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE PRODUCED A COPY OF ITAT ORDER DATED 8.4.2011 IN ITA NOS. 2501 TO 2503/ M/09 FOR THE ASSESSMENT YEARS 2004-05 TO 2006-07 IN QUANTUM APPEALS FILED BY THE ASSESSEE AND ITA NOS.3559 TO 3561/M/09 THE ASSESSMENT YEARS 2002-2003 TO 2004-05 FILED BY THE REVENUE, WHEREIN, THE ADDITIONS MADE BY THE REVENUE AUTHORIT IES WITH REGARDS TO COMMISSION PAYMENT, HAVE BEEN DELETED. HE SUBMITTED THAT AS THE VERY BASIS OF ADDITIONS REGAR DING LEVY OF PENALTY HAVE BEEN DELETED BY THE TRIBUNAL, THE PENALTIES HAVE TO BE CANCELLED. LEARNED D.R. COULD NOT CONTROVERT THE AFORESAID SUB MISSIONS OF LEARNED COUNSEL FOR THE ASSESSEE. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE ORDER OF THE TRIBUNAL DATED 8.4.2011 IN QUANTUM APPEALS (SUPRA), WE FIND THE ADDITIONS IN QUANTUM APPEALS, WHICH WERE THE VERY BASIS OF LEVYING THE PENALTY, H AVE BEEN DELETED BY THE TRIBUNAL. THEREFORE, THE PENALTY ORDERS OF ASSESSING OFFICER HAVE CEASES TO BE DEVOID OF LEGALLY SUSTAINABLE BASIS. IN VIEW OF THIS, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTIES FOR ALL T HE ASSESSMENT YEARS UNDER APPEAL. I.T.A NOS.2075, 2076 & 2077/ MUM/2011 ASSESSMENT YEARS: 2004-05, 2005-06 & 2006-07 3 6. IN THE RESULT, APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2012 SD/- (B.R.MITTAL) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 20 TH JANUARY, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),38, MUMBAI 4. COMMISSIONER OF INCOME TAX,C-IV , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI