ITO 25(1)(3), MUMBAI V. SUNIL R.SHAH, MUMBAI

ITA 2657/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2716 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R KARDAM
• Assessee Lawyers: KESHAV B BHUJALE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER IT A NO. 2657 /MUM/201 5 : (A.Y : 20 08 - 09 ) ITO - 25(1)(3), MUMBAI ( APPELLANT ) VS. SUNIL R. SHAH PROP. OF RUSHABH FABRICS A 401, TALATI APARTMENT, S.V. ROAD, IRLA BRIDGE, ANDHERI (W), MUMBAI 400053. PAN : AQRPS0152J (RESPONDENT) ASSESSEE BY : SHRI KESHAV B. BHUJALE REVENUE BY : SHRI K.R. KARDAM DATE OF HEARING : 13 /0 7 /2016 DATE OF PRONOUNCEMENT : 15 /0 7 /2016 O R D E R THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 37 , MUMBAI DATED 24 . 02 .201 5 , PERTAINING TO THE ASSESSMENT YEAR 20 08 - 09 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 18.03.2013 UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.12,74,268/ - LEVIED U/S 271(1)(C) OF THE I.T. ACT IGNORING THE FACT THAT IN APPELLATE PROCEEDINGS 2 SUNIL R. SHAH ITA NO. 2657/MUM/2015 AGAINST ASSESSMENT ORDER, THE LD. CIT(A) HIMSELF HAS HELD THAT ASSESSEE RECEIVED ACCOMMODATION BILLS ONLY AND NOT RECEIVED ACTUAL GOODS AND ALSO PAYMENT MADE THROUGH CHEQUES WERE RETURNED BACK TO ASSESSEE IN CASH. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(APPEAL) ON THE ABOVE GROUNDS BE SET A SIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. IN THIS CASE, ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT WAS FINALIZED BY THE ASSESSING OFFICER ON 23.12.2010 WHEREIN ADDITION OF RS.40,29,132/ - WAS MADE TO THE RETURNED INCOME ON ACCOUNT OF BOGUS P URCHASES. IT TRANSPIRES THAT THE SAME WAS REDUCED TO RS.37,26,996/ - BY THE CIT(A) VIDE ORDER DATED 22. 0 2.2012. SUBSEQUENTLY, THE ASSESSING OFFICER HELD THE ASSESSEE GUILTY OF DEFAULT U/S 271(1)(C) OF THE ACT AND VIDE ORDER DATED 18. 0 3.2013 HE LEVIED PENA LTY OF RS.12,74,268/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED ON SUCH ADDITION. THIS PENALTY HAS SINCE BEEN DELETED BY THE CIT(A) ON THE GROUND THAT , ON FACTS , IT COULD NOT BE SAID THAT ASSESSEE EITHER CONCEALED THE INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. AGAINST SUCH DELETION OF PENALTY, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE ME, AT THE TIME OF HEARING, LEARNED REPRESENTATIVE FOR THE RESPONDENT - ASSESSEE POINTED OUT THAT THE ASSESSMENT ORDER DATED 23.12.2010 PASSED BY THE ASS ESSING OFFICER HAD TRAVELLED TO THE TRIBUNAL, WHO VIDE ORDER IN ITA NO. 2649/MUM/2012 DATED 11.03.2016 HAS SET - ASIDE THE SAME AND THE MATTER HAS BEEN REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH. OSTENSIBLY, IN VIEW OF THE SA ID DECISION OF THE TRIBUNAL , THE ASSESSMENT ORDER WHICH FORMS 3 SUNIL R. SHAH ITA NO. 2657/MUM/2015 THE BASIS FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ITSELF DOES NOT SURVIVE. AS A CONSEQUENCE, THERE CANNOT BE ANY JUSTIFICATION FOR UPHOLDING THE PENALTY OF RS. 12,74,268/ - , WHICH HAS OTHER WISE BEEN DELETED BY THE CIT(A), ALBEIT ON A DIFFERENT GROUND. BE THAT AS IT MAY, IN VIEW OF THE ORDER OF TRIBUNAL DATED 11.03.2016 ( SUPRA ), THE ONLY COURSE AVAILABLE FOR THE PRESENT IS TO DISMISS THE APPEAL OF THE REVENUE. 5. RESULTANTLY, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 T H JULY, 2016. SD/ - ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 5 T H JULY , 2016 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, SMC BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI