HARRIL THOMAS MONTEIRO, NAVI MUMBAI V. ITO 22(3)-1, MUMBAI

ITA 3280/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55391 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 22-09-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 27-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Unexplained cash credit
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. SL. NO. ITA NO. A.Y. APPELLANT RESPONDENT 01 3280/MUM/10 2003-04 HARRIL THOMAS MONTEIRO, A-4, RAM TANU, SECTOR- 17, PLOT NO. 20, NERUL, NAVI MUMBAI 400 706 (PAN ACRPM 4697 E) INCOME TAX OFFICER, 22(3)(1), MUMBAI. 02 3466/MUM/10 2003-04 INCOME TAX OFFICER, 22(3)(1), MUMBAI HARRIL THOMAS MONTEIRO, A-4, RAM TANU, SECTOR- 17, PLOT NO. 20, NERUL, NAVI MUMBAI 400 706 (PAN ACRPM 4697 E) ASSESSEE BY : NONE REVENUE BY : MR. V.V. SHASTRI DATE OF HEARING : 22/09/2011 DATE OF PRONOUNCEMENT : 30/09 /2011 ORDER PER V. DURGA RAO, J.M.: BOTH THESE APPEALS FILED BY THE ASSESSEE BEING ITA NO. 3280/MUM/2010 AS WELL AS BY THE REVENUE BEING ITA N O. 3466/MUM/2010 ARE DIRECTED AGAINST A COMMON ORDER O F CIT(A) 33, MUMBAI, PASSED ON 16/02/2010. ITA NOS. 3280 & 3466/MUM/2010 HARRIL THOMAS MONTEIRO. 2 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING. HOWEVER, WE PROCEEDED TO DECIDE THESE APPEALS AFTER HEARING THE LEARNED DR AND ON MERITS. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT HUGE AM OUNT OF CASH HAD BEEN DEPOSITED BY THE ASSESSEE IN HIS BANK ACCO UNT IN VIJAYA BANK, NERUL BRANCH, AMOUNTING TO RS. 1,42,54,150/-. IN THE ABSENCE OF ANY BOOKS OF ACCOUNTS AND EXPLANATION FROM THE A SSESSEE, THE AO WAS OF THE VIEW THAT THERE WAS NO SOURCE TO VERIFY WHETHER THE DEPOSITS IN BANK ACCOUNTS WERE ASSESSEES INCOME/IN VESTMENTS OR NOT. IN VIEW OF THE ABOVE THE AO TREATED THE SAID DEPOSI T OF RS. 1,42,54,150/- AS UNEXPLAINED CASH CREDITS U/S 69 OF THE ACT, AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE CIT(A) RESTRICTED THE ADDITION TO THE EXTENT OF RS. 14,25,415/- AS AGAINST THE ADDITION OF RS. 1,42,54,150/- MADE BY T HE AO. THEREAFTER, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD CONCEALED ITS PARTICUL ARS OF INCOME. SINCE THE ASSESSEE NEITHER ATTENDED OR OFFERED ANY EXPLANATION AGAINST THE PENALTY PROCEEDINGS, THE AO CONCLUDED THAT THE ASSESSEE HAD NO EXPLANATION TO OFFER FOR THE LEVY OF PENALTY AND LE VIED PENALTY OF RS. 44,90,057/- U/S 271(1)(C). AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 4. BEFORE THE CIT(A), THE ASSESSEE HAD ARGUED THAT SECTION 271(1)(C) IS NOT APPLICABLE IN ITS CASE SAYING THAT WHERE THE BOOKS OF ACCOUNT WERE NOT PRODUCED AND THE INCOME WAS ESTIMATED, NO PENALTY COULD BE LEVIED FOR ANY CONCEALMENT. THE ASSESSEE HAD ALSO A RGUED THAT SINCE THE SATISFACTION RECORDED BY THE AO IN THE PENALTY ORDER HAS BECOME NON-EXISTENT, THE PENALTY LEVIED ON THE SAID BASIS NEEDS TO BE DELETED. THE ASSESSEE RELIED ON VARIOUS JUDICIAL PRONOUNCEME NTS IN SUPPORT OF HIS CASE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) DIRECTED THE AO TO RESTRICT THE PENALTY U/S 271(1)(C) SO LEVIED ITA NOS. 3280 & 3466/MUM/2010 HARRIL THOMAS MONTEIRO. 3 ON THE ADDITION SUSTAINED BY THE CIT(A) VIDE ORDER DATED 16/01/2010. AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE I S IN APPEAL BEFORE THE TRIBUNAL AGAINST THE DIRECTION OF THE CIT(A) TH AT PENALTY BE SUSTAINED ON THE ADDITION CONFIRMED BY THE CIT(A) A ND THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ACTION OF THE CIT(A) IN RESTRICTING THE PENALTY. 5. WE HAVE HEARD THE LEARNED DR AND PERUSED THE REC ORD AS WELL AS GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. I T IS OBSERVED THAT THE ISSUES IN DISPUTE IN THE QUANTUM APPEALS FILED BY THE REVENUE AND BY THE ASSESSEE WERE REMITTED BACK TO THE FILE OF THE AO IN ITA NO. 2331/MUM/2010(REVENUES APPEAL) AND IN ITA NO. 1270/MUM/2010 (ASSESSEES APPEAL), VIDE ORDER DATE D 23/09/2010, WITH A DIRECTION TO DECIDE THE SAME DE-NOVO AFTER C ONSIDERING THE RELEVANT MATERIAL, IF ANY, PRODUCED BY THE ASSESSEE IN ACCORDANCE WITH LAW AND AFTER PROVIDING REASONABLE OPPORTUNITY OF H EARING TO THE ASSESSEE IN THE MATTER. WHEN THE ADDITION HAS BEEN RESTORED TO THE FILE OF THE AO, IN OUR CONSIDERED OPINION, THE PENA LTY ON THIS ASPECT SHOULD ALSO BE RESTORED TO THE FILE OF THE AO FOR T AKING A FRESH DECISION IN ACCORDANCE WITH THE VIEW FINALLY TAKEN BY HIM IN RESPECT OF ADDITION IN QUANTUM PROCEEDINGS. OUR VIEW IN RESTOR ING THE MATTER TO THE FILE OF THE AO IS FORTIFIED BY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF MOHAMMED MOHATRAM FAROOQUI VS. CIT (SC) 2010-TIOL-23-SC-IT. WE, THEREFORE, OVERTURN THE IMP UGNED ORDER ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF TH E AO FOR TAKING A FRESH DECISION AFTER DECIDING THE MATTER IN QUANTUM APPEALS. ITA NOS. 3280 & 3466/MUM/2010 HARRIL THOMAS MONTEIRO. 4 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AS WELL AS REVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURP OSES. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (R.S. SYAL) (V. D URGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 30 TH SEPTEMBER, 2011 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.