NAZNEEN FAROOQ SARANG, MUMBAI V. DCIT CEN CIR 36, MUMBAI

ITA 3225/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6971 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNALB BENCH MUMBA I BEFORE SH PAWAN SINGH, JUDICIAL MEMBER AND SH RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3225/MUM/2015 (ASSESSMENT YEAR 2003-04 ) IN THE MATTER OF MRS. NAZNEEN FAROOQ SARANG 302,SHABNAM APARTMENTS, 33, S.V. ROAD, ANDHERI (W) (PAN: BEJPS 5270J) ------ -------- ASSESSEE/ APPELLANT VERSUS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -36, MUMBAI-400058 - ------------ REVENUE/ RESPONDENT ASSESSEE REPRESENTED BY SH. PIYUSH CHHAJED -_(AR) REVENUE REPRESENTED BY SH. SUMAN KUMAR SR. DR APPEAL HEARD ON 23 RD MAY 2018 ORDER ANNOUNCED ON 23 RD MAY 2018 PER PAWAN SINGH JUDICIAL MEMBER ; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT IS DIRECTED AGAINST THE ORDER OF COMMISSIONER (APPEALS)-35, MUM BAI DATED 20 MARCH 2015 FOR ASSESSMENT YEAR 2003-04. THE LEARNED COMMISSIONER (APPEALS) CONFIRMED THE PENALTY LEVIED UNDER SECTIO N 271(1)(C) DATED 22 ND OF MARCH 2013.THE ASSESSEE HAS RAISED FOLLOWING GRO UNDS OF APPEAL; (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, COMMISS IONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PENALTY UNDER SECTION 271( 1)(C) WITHOUT APPRECIATING THAT THE NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF INCOME TAX ACT DOES NOT BRING OUT A S WHETHER THE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS AND THEREFORE THE SAME BEING BAD IN LAW, THERE COULD HA VE BEEN NO IMPOSITION OF PENALTY (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COM MISSIONER APPEALS ERRED IN CONFIRMING THE PENALTY OF RS. 1,80,705/-ON ADDITION OF RS.5,85,600/-UNDER SECTION 68 OF THE INCOME TAX ACT TOWARDS CASH DEPOSIT WITHOUT APPRECIATING THAT THERE WAS NO CONC EALMENT OF ITA NO 3225/M/2015 NAZNEEN FAROOQ SARANG 2 FURNISHING OF INACCURATE PARTICULARS AS REQUIRED UN DER SECTION 271(1)(C) OF THE INCOME TAX ACT . 2. WE HAVE HEARD LEARNED AR OF THE ASSESSEE AND LEARNE D DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. AT THE OUTSET OF THE HEARING THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE COVERED BY THE ORDER OF TRIB UNAL IN APPEAL FOR QUANTUM ASSESSMENT. THE LEARNED AR OF THE ASSESSEE FILED COPY OF THE ORDER OF TRIBUNAL IN ASSESSEES APPEAL FOR ASSESSME NT YEAR 2003-04 IN ITA NO. 5198/M/2013 DATED 9 TH OCTOBER 2017. ON GOING THROUGH THE ORDER OF TRIBUNAL THE LEARNED DR OF THE REVENUE FAI RLY CONCEDED THAT THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS COVERED IN FAVOUR OF ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE HAVE NOT ED THAT THE ASSESSING OFFICER LEVIED PENALTY ON DISALLOWANCE UNDER SECTIO N 68 FOR RS. 5,85,600/- TREATING IT AS UNEXPLAINED CASH CREDIT. THE ASSESSI NG OFFICER LEVIED THE PENALTY @100% OF TAX SOUGHT TO BE EVADED IN ITS ORD ER DATED 22 MARCH 2013. WE HAVE NOTED THAT THE ADDITION OF RS. 5,85,6 00/- UNDER SECTION 68 OF THE ACT HAS BEEN DELETED BY THE TRIBUNAL IN APP EAL FOR QUANTUM ASSESSMENT PROCEEDING IN ITA NO.5198 /M/2013 DATED 9 TH OCTOBER 2017. CONSIDERING THE FACT THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED BY ASSESSING OFFICER, HAS ALREADY BEEN D ELETED BY THE COORDINATE BENCH OF THIS TRIBUNAL, THEREFORE, THE P ENALTY LEVIED BY ITA NO 3225/M/2015 NAZNEEN FAROOQ SARANG 3 ASSESSING OFFICER UNDER SECTION 271(1)(C) WOULD NOT SURVIVE. IN THE RESULT GROUND OF APPEAL RAISED BY ASSESSEE IS ALLOWED 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER ANNOUNCED IN THE OPEN COURT ON 23 RD MAY 2018 IN OPEN COURT. SD/- SD/- RAJESH KUMAR PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 23.05.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR A BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI