AMIT TANDON, MUMBAI V. DCIT 24(1), MUMBAI

ITA 2688/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0928 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: R C JAIN
• Keywords: Additional evidence; Question of law

Judgement Text

INCOME-TAX APPELLATE TRIBUNAL -ABENCH MUMBAI BEFORE S/SH.JOGINDERSINGH,JUDICIAL MEMBER AND RAJENDRA,ACCOUNTANT MEMBER ./ I.T.A./2688/MUM/2013 , / ASSESSMENT YEAR: 2006-07 AMIT TANDON 1404-D,ROYAL CLASSIC, NEW LINK ROAD, ANDHERI(WEST), MUMBAI-400 053 PAN: ABZPT3948C VS. DCIT- WARD 24(1),MUMBAI. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: RAJESHKUMAR YADAV ASSESSEE BY: R C JAIN / DATE OF HEARING: 19.04.2017 / DATE OF PRONOUNCEMENT: 19.04.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 27/02/2013, OF THE CIT (A)-34, MUMBAI, THE ASSESSEE HAS FILED THE PRESENT APPEAL.ASSESSEE, AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF DEALING IN REAL ESTATE, HIRING OF EDITING EQUIPMENTS AND FURNITURE/FIXTURE, FILED HIS RETURN OF INCOME ON 31/10/2006, DECLARING INCOME OF RS. 40.18 LAKHS. THE ASSESSING OFFICER (A O) COMPLETED THE ASSESSMENT U/S. 143 (3) OF THE ACT,ON 22/12/2008, DETERMINING ITS INCOME AT RS . 1, 17, 26, 300/-. 2. ALONG WITH THE ORIGINAL GROUNDS OF APPEAL, THE ASSE SSEE HAS ALSO FILED ADDITIONAL GROUND OF APPEAL AND HAS REQUESTED TO ADMIT THE SAME STATING THAT GROUND WAS PURELY LEGAL IN NATURE AND THERE WAS NO NEED TO MAKE ENQUIRY ABOUT THE FACTS. IT WAS FURTHER STATED THAT THE OMISSION OF THE SAID GROUND IN THE ORIGINAL GROUNDS WAS NOT WILFUL OR UNREASONABLE. DURING THE COURSE OF HEARING BEFORE US, THE AUTHORI SED REPRESENTATIVE (AR) MADE THE SALE SUBMISSIONS THAT ARE PART OF THE APPLICATION FOR AD MITTING THE ADDITIONAL EVIDENCES.THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE OF ADMITTING ADDITIONAL EVIDENCE TO THE DISCRETION OF THE BENCH. WE FIND THAT THE ISSUE RAI SED BY THE ASSESSEE IS A QUESTION OF LAW AND DOES NOT INVOLVE INVESTIGATION FACTS. THEREFORE, BE ADMIT THE SAME. 3. EFFECTIVE GROUND OF APPEAL IS ABOUT CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C), AMOUNTING TWO RS. 24.14 LAKHS.DURING THE ASSESSMENT PROCEEDIN GS, THE AO HAD MADE CERTAIN ADDITIONS/ DISALLOWANCES TO THE TOTAL INCOME OF THE ASSESSEE.T HE FIRST APPELLATE AUTHORITY(FAA)DISMISSED 2688/M/13-AMIT TANDON 2 THE APPEAL FILED BY HIM.THE TRIBUNAL CONFIRMED THE ORDER OF THE FAA IN THE QUANTUM PROCEEDINGS. 4. MEANWHILE,THE AO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ASKING HIM AS TO WHY PENALTY U/S.271(1)(C) SHOULD NOT BE LEVIED FOR FURNISHING I NACCURATE PARTICULARS OF INCOME. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, DATED 1 2/07/201, THE AO HELD THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF INCOME. HE LEVIED A PE NALTY OF RS. 24, 14, 800/-AS PER THE PROVISIONS OF SECTION 271(1)(C). DURING THE APPELLATE PROCEEDI NGS, THE FAA CONFIRMED THE PENALTY LEVIED BY THE AO. 5. DURING THE COURSE OF HEARING BEFORE US, THE AR STAT ED THAT WHILE ISSUING THE NOTICE FOR LEVYING THE PENALTY, THE AO HAD NOT INDICATED AS TO UNDER W HICH LIMB OF THE SECTION THE ASSESSEE HAD COMMITTED THE DEFAULT I.E. WHETHER IT WAS FOR FURNI SHING INACCURATE PARTICULARS OR FOR CONCEALING THE PARTICULARS OF INCOME.HE REFERRED TO THE NOTICE ISSUED BY THE AO,WHEREIN BOTH THE LIMBS OF THE PENALTY NOTICE WAS EXISTING. HE REFERRED TO THE CASES OF SSAS EMERALD MEADOWS (242 TAXMAN 180) AND CHANDRU K MIRCHANDANI(ITA/5368/MUM/ 2014-AY.2009-10,DATED 05/04/ 2017). THE DR STATED THAT MATTER COULD BE DECIDED O N MERITS. 6. WE FIND THAT THE HONBLE APEX COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) HAS HELD THAT IF THE PENALTY NOTICE ISSUED BY THE AO DOES NO T SPECIFY UNDER WHICH LIMB OF THE SECTION 271(1)(C) OF THE ACT PENALTY PROCEEDINGS HAD BEEN I NITIATED,THE PENALTY LEVIED UNDER THE SAID SECTION WOULD NOT BE VALID.IN THE CASE UNDER CONSID ERATION THE AO HAS NOT SPECIFIED THE LIMB UNDER WHICH PENALTY WAS LEVIABLE. THEREFORE,RESPECT FULLY FOLLOWING THE ABOVE JUDGMENT OF THE HONBLE SUPREME COURT, WE DECIDE THE ADDITIONAL GRO UND OF APPEAL IN FAVOUR OF THE ASSESSEE AND REVERSE THE ORDER OF THE FAA. AS A RESULT,APPEAL FIL ED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH APRIL, 2017. SD/- SD/- ( / RAJENDRA ) ( JOGINDERSINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 19.04.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 2688/M/13-AMIT TANDON 3 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.