SAURIN MANUBHAI PATEL, MUMBAI V. ACIT CC 25, MUMBAI

ITA 3432/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8643 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: I
• Next Hearing Date: 05-12-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 05-06-2015
• Court: TRIBUNAL
• Section: 143(3); 132

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI , JUDICIAL MEMBER ITA NO. 3432/M/2015 (AY 2007 - 2008 ) SHRI SAURIN MANUBHAI PATEL, 71, RENU APARTMENT, 1/19, DONGARSHI ROD, MALABAR HILL, MUMBAI 0 400 054. / VS. ACIT - CC 25, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 02. ./ PAN : AADPP3622J ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MAYUR KISNADWALA / RESPONDENT BY : SHRI SAURABHKUMAR RAI, DR / DATE OF HEARING : 14.12 .2016 / DATE OF PRONOUNCEMENT : 10 .02 .2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 5.6.2015 IS AGAINST THE ORDER OF THE CIT (A) - 51, MUMBAI DATED 20.03.2015 FOR THE ASSESSMENT YEAR 2007 - 2008. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER LEVYING PENALTY IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CONFIRMING THE ACTION OF T HE AO OF LEVYING PENALTY OF RS.4,88,0 69/ - U/S 271(1)(C) OF THE ACT. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE RELEVANT ASSESSMENT WAS MADE U/S 143(3) READ WITH SECTION 153C OF THE ACT ON 19.3.2013 DETERMINING THE ASSESSED INCOME OF RS. 68,44,890/ - AGAINST THE RETURNED INCOME OF RS. 53.94 LAKHS. IN THE ASSESSMENT, AO MADE THE ADDITION OF RS. 14.50 LAKHS ON ACCOUNT OF PROFESSIONAL RECEIPTS RELYING ON THE INFORMATION RECEIVED THROUGH AIR. IN THE ASSESSMENT ORDER, AO HELD THAT THE ASSESSEE HAS NOT REFLECTED PROFESSIONAL RECEIPT OF RS. 14.50 LAKHS, WHICH WAS RECEIVED FROM M/S. TEROCK INFRASTRUCTURE PVT LTD. ACCORDINGLY, AO LEVIED THE ABOVE SAID PENALTY OF RS. 4,88,069/ - U/S 271(1)(C) OF 2 THE ACT VIDE HIS ORDER DATED 19.9.2013. ON APPEAL, CIT (A) CONFIRMED THE SAID PENALTY AND THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US . 3. DURING THE PROCEEDINGS BEFORE US, SHRI MAYUR KISNADWALA, LD COUNSEL FOR THE ASSESSEE S UBMITTED THAT THIS IS A CASE, WHEREIN SOLITARY ADDITION WAS MADE BY THE AO IN THE SEARCH ASSESSMENT RELATING TO TH E SAID PROFESSIONAL RECEIPTS OF RS. 14.50 LAKHS AND THE SAME IS NOT SUPPORTED BY ANY INCRIMINATING INFORMATION FOUND DURING THE SEARCH ACTION ON M/S. PATEL ENGINEERING LTD GROUP OF CASES. IN FACT, THE SAID AIR REPORT OF THE DEPARTMEN T WAS THE SOURCE OF IN FORMATION FOR THE SAID ADDITION. THE ASSESSMENT MADE U/S 143(3) R.W.S 153C OF THE ACT IS UNSUSTAINABLE IN LAW CONSIDERING THE ABSENCE OF ANY INCRIMINATING MATERIAL. FURTHER, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSMENT CONSTITUTES AN NON - AB ATED ASSESSMENT CONSIDERING THE FACT THAT THE ORIGINAL RETURN OF INCOME WAS FILED ON 27.3.2008 AND NOTICE U/S 143(2) OF THE ACT WAS NOT ISSUED TILL THE DATE OF SEARCH ACTION. THE ACTUAL DUE DATE EXPIRED BY THE TIME OF SEARCH ACTION U/S 132 OF THE ACT OR THE DATE OF RECEIPT OF THE DOCUMENTS / SEIZE MATERIAL BY THE ASSESSING OFFICER OF THE ASSESSEE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE FACTS OF THE CASE, WE FIND, I T IS A SETTLED LEGAL PROPOSITION THAT NO ADDITIONS IN THE CASE OF THE ASSESSEE, LIKE THE PRESENT ONE WHO IS COVERED BY THE PROVISIONS OF SECTION 153C OF THE ACT, CAN BE MADE VALIDLY IN THE ABSENCE OF ASSESSMENT YEAR SPECIFIC IN CRIMINATING DOCUMENTS. THE COMPLETED ASSESSMENTS LIKE THE INSTANT ONE, CANNOT BE REOPENED FOR MAKING ADDITIONS OTHER THAN T H E A D D I T I O N S UNSUPPORTED BY THE INCRIMINATING MATERIAL EITHER FOUND DURING THE SEARCH OR COLLECTED DURING THE SEARCH ACTION. THEREFORE, IF THE A SSESSEE WOULD HAVE CONTESTED IN APPEAL THE ABOVE ADDITION OF RS. 14.50 LAKHS, IN ALL PROBABILITY, THE ASSESSEE WOULD HAVE WON THE CASE IN ITS FAVOUR AND THE ADDITIONS WOULD HAVE BEEN DELETED IN THE APPEALS. ON THESE FACTS, THE LEVY OF PENALTY U/S 271(1)(C ) OF THE ACT ON SUCH ADDITION OF RS. 14.50 LAKHS WHICH WOULD HAVE BEEN DELETED BY THE APPELLATE AUTHORITY IS UNSUSTAINABLE IN LAW AND THE SAME CONSTITUTES LEGAL PROPOSITION. THEREFORE, AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OPINION, THE PENALTY LEV IED BY THE AO IN THIS CASE SHOULD BE DELETED. ACCORDINGLY WE ORDER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 3 ORDER PRONOUN CED IN T HE OPEN COURT ON 1 0 T H FEBRUARY, 2017. S D / - S D / - ( RAM LAL NEGI ) (D. KARUNA KARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 10.02.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI