VANDANA SHARAD DHAKTODE, THANE V. CIT I, THANE

ITA 3363/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2696 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PHEROZE ANDHYARUJNINA
• Keywords: Unexplained cash credit; Opportunity of being heard; Initiation of penalty proceedings
• Section: 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 3363 / MUM/20 1 4 ( / ASSESSMENT YEA R : 200 9 - 10 ) SMT.VANDANA SHARAD DHAKTODE, 101, SHARAYU, OLD AYRE ROAD, DOMBIVALI (E), DIST. THANE - 421201 / VS. COMMISSIONER OF IN COME TAX - I THANE. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AEPPD9795Q / APPELL ANT BY SHRI PHEROZE ANDHYARUJNINA / RESPONDENT BY SHRI PRAMOD NIKALJE / DATE OF HEARING : 4 .11 . 201 5 / DATE OF PRONOUNCEMENT: 4 .11. 201 5 / O R D E R P ER B R BASKARAN, AM: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.3.2014 PASSED BY COMMISSIONER OF INCOME TAX - I, THANE UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE ASSESSEE IS CHALLENGIN G THE VALIDITY OF A REVISION ORDER PASSED BY THE COMMISSIONER OF INCOME TAX U/S 263 OF THE ACT . 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE LD. AR SUBMITTED A COPY OF REVISION NOTICE ISSUED BY THE CIT AND SUBMITTED THAT THE C IT HAS I NITIATED THE PROCEEDINGS U/S 263 OF THE ACT IN ORDER TO VERIFY THE AMOUNT OF RS.4,55,221/ - FOUND CREDITED IN THE CAPITAL ACCOUNT OF THE ASSESSEE. ITA NO. 3363/ MUM/20 1 4 2 BEFORE THE CIT, THE ASSESSEE DID NOT APPEAR AND HENCE THE LD.CIT PROCEEDED TO PASS THE ORDER EX - PARTE. HOWEVER, T HE CIT NOTICED THAT THE AO HAS , IN FACT, ASSESS ED THE ABOVE SAID AMOUNT OF RS.4,55,221/ - AS INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT. HAVING NOTICED THIS FACT, T HE LD CIT TOOK THE VIEW THAT THE A O SHOULD HAVE INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IN RESPECT OF THE ABOVE SAID ADDITION AND ACCORDINGLY TOOK THE VIEW THAT NON - INITIAT ION OF THE PENALTY PROCEEDINGS HA S RENDERED THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY, THE CIT SET ASIDE THE ASSESS MENT ORDER AND DIRECTED THE AO TO RE - DO THE ASSESSMENT DE - NOVO AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 4. THE LD. A.R FURTHER SUBMITTED THAT THE ISSUE RELATING THE INITIATION OF REVISION PROCEEDINGS WAS NOT MENTIONED IN THE NOTICE ISSU ED BY THE CIT . HE SUBMITTED THAT THE HONBLE DELHI BENCH OF TRIBUNAL HAS HELD IN THE CASE OF B S SANGWAN V/S ITO (2015) 67 SOT 447 HAS HELD THAT REVISION ORDER CAN ONLY BE PASSED ON THE GROUND ON WHICH THE ASSESSEE HAS BEEN GIVEN REASONABLE OPPORTUNITY OF BEING HEARD AND IT IS NOT OPEN TO THE COMMISSIONER TO SET OUT ONE REASON FOR RE VISI NG ORDER BUT ACTUALLY REVISE THE ORDER ON SOME OTHER GROUND. THE LD. COUNSEL SUBMITTED THAT THE LD CIT HAS REVISED THE ASSESSMENT ORDER, IN THE INSTANT CASE ALSO, ON THE GR OUND WHICH WAS NOT STATED IN THE NOTICE. 5. THE LD A.R FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS DISCRETIONARY POWER WITH REGARD TO THE INITIATION OF PENALTY PROCEEDINGS AND IN THE INSTANT CASE, THE AO HAS CHOSE N NOT TO INITIATE PENALTY PROCEEDI NGS . HENCE THE LD CIT CANNOT COMPEL THE ASSESSING OFFICER TO INITIATE PENALTY PROCEEDINGS BY PASSING REVISION ORDER . IN SUPPORT OF THIS SUBMISSIONS, THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY ITA NO. 3363/ MUM/20 1 4 3 CHANDIGARH BENCH OF TRIBUNAL IN THE CASE OF AMARJE ET DHALL VS. CIT (2014)(65 SOT 33)(CHA)(URO). 6 . THE LD. DR, ON THE CONTRARY, SUPPORTED THE ORDER PASSED BY THE COMMISSIONER . 7 . HAVING HEARD THE RIVAL CONTENTIONS, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSIONS MADE BY THE LD. AR. WE NOTIC E THAT THE CIT HAS NOT ISSUED REVISION NOTICE IN CONNECTION WITH THE NON - INITIATION OF THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND HENCE THE SAME CANNOT BE SUBJECT MATTER OF REVISION . THIS VIEW GETS SUPPORT FROM THE DECISION RENDERED BY THE DELH I BENCH OF TRIBUNAL IN THE CASE OF B.S.SANGWAN (SUPRA), WHICH HAD FOLLOWED THE DECISION RENDERED BY OTHER BENCHES OF TRIBUNAL IN THE CASE OF SYNERGY ENTREPRENEUR SOLUTIONS (P) LTD (2011)(46 SOT 111)(DELHI) AND ALSO IN THE CASE OF MAXPAK INVESTMENTS LTD VS. ASST. CIT (2003)(13 SOT 67)(DELHI). HENCE THE REVISION ORDER IS LIABLE TO BE QUASHED ON THIS GROUND ALONE. 7 . A CASUAL PERUSAL OF THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT WOULD SHOW THAT THE AO MAY DIRECT THAT THE ASSESSEE SHALL PAY BY WAY OF PENALTY . . THE U S E OF WORD MAY GIVES DISCRETION TO THE AO NOT TO INITIATE PENALTY PROCEEDINGS. HENCE, THE COMMISSIONER, UNDER THE GARB OF REVISING THE ASSESSMENT ORDER, CANNOT DIRECT THE AO TO CHANGE HIS DECISION. THIS VIEW ALSO FINDS SUPPORT FROM THE DECISION RENDERED BY THE CHANDIGARH BENCH OF TRIBUNAL IN THE CASE OF AMARJEET DHALL (SUPRA). 8. IN VIEW OF THE FOREGOING DISCUSSIONS , WE ARE OF THE VIEW THAT THE IMPUGNED REVISION ORDER CANNOT BE SUSTAINED. A CCORDINGLY, WE SET ASIDE THE SAME. ITA NO. 3363/ MUM/20 1 4 4 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . PRONOUNCED ACCORDINGLY ON 4TH NOVEMBER , 2 015. 4TH NOV , 2 015 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 4TH NOV , 2 015. . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI