Joint Commissioner of Income Tax, Special Range, Panaji V. M/s V. M. Salgaocar & Brothers (P) Ltd., Vasco

ITA 272/PAN/2019

AI Insights

The case involves two appeals: ITA.No.272/PAN./2019 filed by the Revenue against M/s. V.M. Salgaocar & Brothers Pvt. Ltd., and ITA.No.284/PAN./2019 filed by the assessee against the JCIT. The first appeal contested the deletion of a substantial penalty under section 271(1)(c) for the assessment year 2006-2007, while the second appeal addressed the denial of a deduction for education cess on income tax paid for the assessment year 2012-2013. The tribunal's decisions were based on procedural adherence in penalty imposition and statutory interpretations following recent legislative changes.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136835 (ITAT-PANAJI)
• Duration Of Justice: 3 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 06-10-2019
• Other Referred Cases: Mohd. Farhan A.Shaikh Vs. ACIT, Sesa Goa Ltd. vs. JCIT, Chambal Fertilizers & Chemicals Ltd. vs. JCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Retrospective amendment
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH : PANAJI (THROUGH VIRTUAL HEARING) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI G.D. PADMAHSHALI, ACCOUNTANT MEMBER ITA.No.272/PAN./2019 Assessment Year 2006-2007 The JCIT, Special Range, 2 nd Floor, Aayakar Bhawan, EDC Complex, Patto Plaza, Panaji – 403 001 vs. M/s. V.M. Salgaocar & Brothers Pvt. Ltd., Salgaocar House, F.L. Gomes, Vasco Da Gama, Goa – 403 802 PAN AAACV5950B (Appellant) (Respondent) ITA.No.284/PAN./2019 Assessment Year 2012-2013 M/s. V.M. Salgaocar & Brothers Pvt. Ltd., Salgaocar House, F.L. Gomes, Vasco Da Gama, Goa – 403 802 PAN AAACV5950B vs. The JCIT, Special Range, 2 nd Floor, Aayakar Bhawan, EDC Complex, Patto Plaza, Panaji – 403 001 (Appellant) (Respondent) For Assessee : Shri Ketan Ved For Revenue : Shri Badrinath Yamaji Chavan Date of Hearing : 09.08.2023 Date of Pronouncement : 10.08.2023 ORDER PER SATBEER SINGH GODARA, J.M. : This Revenue ITA.No.272/ PAN./2019 [A.Y. 2006- 2007]; and that filed by the assessee i.e., ITA.No.284/ PAN./2019 [A.Y. 2012-2013], arise against the CIT(A), Panaji- 1, Panaji's separate orders in case no.ITA.CIT(A),PNJ- 1/10207/2014-15, dated 30.07.2019 and in case no.ITA. 2 ITA.Nos.272 & 284/PAN./2019 CIT(A),PNJ-1/10944/2015-16, dated 27.09.2019, in proceedings under sec.271(1)(c) and under sec.143(3) of the Income Tax Act, 1961 (in short "the Act"); case-wise respectively. Heard both the parties. Case files perused. 2. Coming to the Revenue’s sole substantive grievance in it’s appeal ITA.No.272/ PAN./2019 that the CIT(A) has erred in law and on facts in deleting the section 271(1)(c) penalty of Rs.1,65,36,068/- imposed by the Assessing Officer, it emerges at the outset that the Assessing Officer’s corresponding penalty show cause notice dated 08.12.2011 issued to the taxpayer had nowhere specified or struck-off the relevant limb as to whether the latter had concealed particulars of his income or furnished inaccurate particulars of such an income, as the case may be. 3. Faced with the situation, we quote hon’ble jurisdictional high court’s recent Full Bench landmark decision in Mohd. Farhan A.Shaikh Vs. ACIT 434 ITR 1 (Bom) that the above stated failure on the Assessing Officer’s part indeed vitiates the entire penal proceedings itself. We thus confirm the CIT(A)’s order in deleting the impugned penalty for this precise reason alone. Ordered accordingly. 4. This Revenue’s appeal ITA.No.272/PAN./2019 is dismissed in above terms. 3 ITA.Nos.272 & 284/PAN./2019 5. Coming to the assessee’s appeal ITA.No.284/ PAN./2019 for assessment year 2012-2013, we note that it’s sole substantive ground seeks to claim deduction representing secondary and higher education cess on income tax paid for the relevant previous year in light of Sesa Goa Ltd., vs. JCIT [2020] 423 ITR 426 (Bom.) as well as Chambal Fertilizers & Chemicals Ltd., vs., JCIT [2019] 107 taxmann.com 484 (Raj.). We are afraid that much water has flown down the stream as the legislature has now amended sec.40(ii) by way of inserting Explanation 3 vide Finance Act, 2022 with retrospective effect from 01.04.2005 making it clear that the clinching statutory expression “tax” shall include and shall be deemed to have always included any surcharge or cess, by whatever name called, on such tax. That being the case, we reject the assessee’s vehement contentions in very terms. It’s appeal ITA.No.284/PAN./2019 fails. Ordered accordingly. 6. No other ground or argument has been pressed before us. 7. To sum-up, both these Revenue’s and assessee’s appeals ITA.No.272/PAN./2019 and ITA.No.284/PAN./2019 are dismissed in above terms. A copy of this common order be placed in the respective case files. 4 ITA.Nos.272 & 284/PAN./2019 Order pronounced in the open court on 10.08.2023. Sd/- Sd/- [G.D. PADMAHSHALI] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 10 th August, 2023 VBP/- Copy to 1. The appellant 2. The respondent 3. The CIT(A) Panaji-1, Aayakar Bhavan, Plot No.5, EDC Complex, Patto Plaza, Panaji – 403 001. 4. The Pr. CIT, Panaji 5. D.R. ITAT, Panaji Bench, Panaji 6. Guard File. //By Order// Assistant Registrar, ITAT, Pune Benches, Pune.