ASST CIT CEN CIR 14, MUMBAI V. KIRANRAJ BIRAWAT (HUF), MUMBAI

ITA 268/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3123 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 16-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-01-2013
• Court: TRIBUNAL
• Keywords: Accommodation entries
• Section: 143(3); 153A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K ** , U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI JH TH + ,L + IUUW] YS[KK LNL; ,OA JH LAT; XXZ] U;KF;D LNL; DS LE{KA BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER VK;DJ VIHY LA[;K@ ITA NO 268/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2005 - 06 ) VK;DJ VIHY LA[;K@ ITA NO 269/MUM/2013 ( FU/KKZJ.K OKZ / ASSESSMENT YEAR: - 2006 - 07) INCOME TAX OFFICER - 17(3)(2) ROOM NO. 621, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012. VS.` KIRANRAJ BIRAWAT HUF 105/106, 305/306 B - BLOCK, DEEPAK JYOTI TOWER, G.D. AMBEDKAR MARG, KALACHAWKI, MUMBAI 400 033. LFKK;H YS[KK LA[;K@TH VKB VKJ LA[;K@ PAN/GIR NO. AAAHB4420M APPELLANT RESPONDENT ORDER PER G.S. PANNU, ACCOUNTANT MEMBER. THE CAPTIONED ARE TWO APPEALS BY THE REVENUE DIRECTED AGAINST A COMMON ORDER OF CIT(A) DATED 31.10.2012, WHICH IN TURN HAS ARISEN FROM TWO SEPARATE BUT SIMILARLY WORDED ORDERS DATED 15.02.2012 , JKTLO FD VKSJ LS @ REVENUE BY SHRI SANJAY SINGH FU/KZKFJFR FD VKSJ LS @ ASSESSEE BY SHRI AJAY NAGPAL LQUOKBZ FD RKJH[K @ DATE OF HEARING 29.07.2015 ?KKSK.KK FD RKJH[K@ DATE OF PRONOUNCEMENT 30 .09.2015 ITA NO 268/MUM/2013 ITA NO 269/MUM/2013 2 | P A G E PASSED BY THE ASSESSING OFFICER LEVYING PENALTY U/S 271(1)(C) OF THE ACT, PERTAINING TO ASSESSMENT YEAR S 2005 - 06 AND 2006 - 07. 2. IN BOTH THE APPEALS, THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT THE CIT(A) ERRED IN CANCELLING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U /S 271(1)(C) OF THE ACT, AMOUNTING TO RS. 9,01,010/ - AND RS. 12,57,794/ - FOR ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 RESPECTIVELY. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL IN BOTH THE ORDERS, THE APPEAL PERTAINING TO ASSESSMENT YEAR 2005 - 06 IS TAKEN AS THE LEAD CASE. 3. RELEVANT FACTS ARE THAT THE RESPONDENT - ASSESSEE IS AN HUF BELONGING TO THE FAMILY MEMBERS OF BIRAWAT G ROUP OF CASES, WHEREIN A SEARCH ACTION U/S 132(1) OF THE ACT WAS UNDERTAKEN BY THE DEPARTMENT ON 1 0.01.2007. IT TRANSPIRES FROM RECORD, THAT IN ASSESSMENTS MADE U/S 153A OF THE ACT AS A CONSEQUENCE OF THE SEARCH ACTION, THE CAPITAL GAINS EARNED BY THE ASSESSEE ON SALE AND PURCHASE OF SHARES WAS CONSIDERED AS BOGUS TRANSACTIONS. IN THE ASSESSMENT FINAL IZED BY THE A SSESSING O FFICER FOR ASSESSMENT YEAR 2005 - 06 U/S 143(3) R.W.S 153A OF THE ACT, DATED 30.12.2008, THE TOTAL INCOME WAS ASSESSED AT RS. 31,65,750/ - WHICH INTER - ALIA INCLUDED THE FOLLOWING TWO ADDITIONS: - ITA NO 268/MUM/2013 ITA NO 269/MUM/2013 3 | P A G E A) UNACCOUNTED MONEY USED FOR FABRICATED SHARE TRANSACTIONS RS. 26,31,869/ - B) 5% OF UNACCOUNTED MONEY PAID FOR OBTAINING ACCOMMODATION ENTRIES RS. 1,31,593/ - 4. SUBSEQUENTLY, IN THE CONTEXT OF THE AFORESAID ADDITION, THE ASSESSING OFFICER HELD THE ASSESSEE GUILTY OF FURNISHING OF INACCURAT E PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT, AND ACCORDINGLY IMPOSED A PENALTY EQUIVALENT TO 100% OF THE TAX SOUGHT TO BE EVADED ON SUCH INCOME WHICH AMOUNTED TO RS. 9,01,010/ - . THE AFORESAID LEVY OF PENALTY WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE CIT(A) WHO HAS SINCE DELETED THE SAME BY WAY OF A DETAILED ORDER WHICH IS SOUGHT TO BE CHALLENGED BY THE REVENUE BEFORE US. 5. A T THE TIME OF HEARING, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT SUBSEQUENT TO THE IMPUGNED ORDER BY THE CIT(A), ASSESSEES APPEAL ON THE QUANTUM ASSESSMENT CAME UP BEFORE THE TRIBUNAL AND VIDE ITA NOS. 6964 & 6947/MUM/2010 & ORS. D ATED 20.02.2015, READ ALONG WITH THE ORDER IN MISCELLANEOUS APPLICATION NO. 60/MUM/2015, DATED 01.0 5.2015 , THE ADDITIONS MADE BY THE ASSESSING ITA NO 268/MUM/2013 ITA NO 269/MUM/2013 4 | P A G E OFFICER HAVE SINCE BEEN DELETED. IT WAS ALSO ASSERTED BY THE LD. REPRESENTATIVE FOR THE ASSESSEE THAT THE SAID ORDERS OF THE TRIBUNAL DATED 20.02.2015 (SUPRA) AND 01.05.2015 (SUPRA) CONTINUE TO HOLD THE FIELD AND, THEREFORE, THE VERY BASIS ON WHICH THE PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER, DOES NOT SURVIVE FOR CONSIDERATION. 6. THE AFORESAID FACTUAL MATRIX HAS NOT BEEN DISPUTED BY THE LD. DR BEFORE US . 7. AS A CONSEQUENCE OF THE AFORESAID, WE, THEREFORE DEEM IT FIT AND PROPER TO UPHOLD THE ULTIMATE CONCLUSION OF THE CIT(A) IN DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT ALBEIT ON A DIFFERENT BASIS. IN THE RESULT , APPEAL OF THE REVENUE FOR A SSESSMENT YEAR 2005 - 06 IS HEREBY DISMISSED. 8. SINCE THE FACTS AND CIRCUMSTANCES IN ASSESSMENT YEAR 2006 - 07 ARE IDENTICAL TO THOSE IN ASSESSMENT YEAR 2005 - 06, OUR DECISION IN THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2005 - 06 SHALL ALSO APPLY MUTATIS MU TANDIS IN ASSESSMENT YEAR 2006 - 07. ITA NO 268/MUM/2013 ITA NO 269/MUM/2013 5 | P A G E 9. RESULTANTLY, THE CAPTIONED APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 0 T H DAY OF SEPTEMBER 2015. S D / - S D / - ( SANJAY GARG ) (G.S. PANNU) (JUDICIAL MEMBER/ U;KF;D LNL; ) (ACCOUNTANT MEMBER/ YS[KK LNL; ) MUMBAI DATED 3 0 - 09 - 2015 SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI