GEBI ENTERPRISES, MUMBAI V. ITO 25(3)(4), MUMBAI

ITA 2548/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7850 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 1992-1993
• Appeal Filed On: 20-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL MISHRA; SANJUKTA CHOW DHURY
• Keywords: Loose papers; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI R.K. PAND A ,(AM) ITA NO.2548/MUM/2009 ASSESSMENT YEAR : 1992-93 SHREE GEBI ENTERPRISE 117, SUPER SHOPPING COMPLEX BAJAJ CROSS ROAD, 1 ST FLOOR KANDIVILI(W) MUMBAI-400 067. ..( APPELLANT ) P.A. NO. (AABFS 3279 A) VS. INCOME TAX OFFICER 25(3)(4) MUMBAI. ..( RESPONDENT ) APPELLANT BY : MS. SANJUKTA CHOW DHURY AND SHRI ANIL MISHRA RESPONDENT BY : SHRI SUSHIL KUMAR O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DT.19.2.2009 PASSED BY THE LD. CIT(A) FOR THE A SSESSMENT YEAR 1992-93 SUSTAINING THE PENALTY OF RS.69,552/- IMPOSED B Y THE ASSESSING OFFICER U/S. 271(1)(C) OF THE INCOME TAX ACT, 196 1(THE ACT). 2. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE SUBMITS THAT ON THE ADDITION OF RS.4.00 LACS ON WHICH THE PENAL TY HAS BEEN ITA NO.2548/M/09 A.Y: 92-93 2 IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) HAS B EEN RESTORED TO THE FILE OF THE AO IN THE QUANTUM APPEAL DECIDED BY THE TRIBUNAL IN ASSESSEES OWN IN SHREE GEBI ENTERPRISE VS. ITO IN ITA NO. 6703/MUM/2006 FOR ASSESSMENT YEAR 1992-93 VIDE ORDER DT . 26 TH OCT., 2009, THEREFORE, THE PENALTY IMPOSED BY THE AO AND SU STAINED BY THE LD. CIT(A) BE DELETED. HE ALSO PLACED ON RECORD THE CO PY OF THE SAID ORDER OF THE TRIBUNAL. 3. ON THE OTHER HAND THE LD. D.R. SUPPORTS THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A). 4. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE M ATERIAL AVAILABLE ON RECORD WE FIND THAT THE ASSESSEE FIRM IS ENG AGED IN THE BUSINESS OF MANUFACTURING GARMENTS EXPORTS. IT FILED RE TURN DECLARING TOTAL INCOME AT RS.21,150/-. SUBSEQUENTLY, THERE WAS A SEARCH U/S.132 OF THE ACT WHEREIN CERTAIN LOOSE PAPERS, FILES AN D DIARIES HAVE BEEN FOUND AND SEIZED IN THE TANNA GROUP OF CASES. ACCO RDINGLY THE ASSESSMENT WAS RE-OPENED U/S.147 OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS RECEIVED A SUM OF CASH OF RS.7.00 LACS ON VARIOUS D ATES AS PER SEIZED MATERIAL. IT WAS ALSO NOTICED THAT THE ASSE SSEE HAS MADE CASH PAYMENT OF RS.5.20 LACS TO DIFFERENT PERSONS. T HESE RECEIPTS AND PAYMENTS WERE NOT CONSIDERED AT THE TIME OF ORIGINAL ITA NO.2548/M/09 A.Y: 92-93 3 ASSESSMENT PROCEEDINGS. DURING THE REASSESSMENT PROCEEDINGS TH E AO AFTER CONSIDERING THE ASSEESSEES EXPLANATION ADDED CASH RECE IPTS OF RS.7.00 LACS U/S.68 OF THE ACT AND COMPLETED THE ASSESSMENT AT AN INCOME OF RS.7,21,150/-. ON APPEAL, THE LD. CIT(A) D ELETED THE LOAN RECEIVED BY THE ASSESSEE OF RS.3.00 LACS AND CONFIRMED THE A DDITION OF RS.4.00 LACS. ON FURTHER APPEAL TO THE TRIBUNAL , THE TRIBUNAL FOLLOWING THE JUDGMENT IN THE CASE OF G.K.N. DRIVESHA FTS (INDIA) LTD. VS. ITO (259 ITR 19) (SC) DIRECTED THE AO TO FURNISH T HE REASONS OF RE- OPENING OF THE ASSESSMENT TO THE ASSESSEE AND ACCORDINGLY RESTORED THE MATTER TO THE FILE OF THE AO VIDE ORDER DATED 2 6 TH OCT. 2009 (SUPRA). THIS BEING SO, AND IN THE ABSENCE OF ANY OTHER CONTRARY MATERIAL PLACED ON RECORD BY THE REVENUE WE ARE OF TH E VIEW THAT SINCE THE ADDITION ITSELF HAS BEEN SET ASIDE TO THE FILE OF THE AO BY THE TRIBUNAL SUPRA, THEREFORE, THE PENALTY HAS NO LEGS TO STAND AND ACCORDINGLY THE SAME IS DELETED. THE GROUNDS TAKEN BY T HE ASSESSEE ARE THEREFORE, ALLOWED. 5. IN THE RESULT, THE ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2010. SD/- SD/- ( R.K. PANDA ) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED:01.02.2010. JV. ITA NO.2548/M/09 A.Y: 92-93 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR G BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.