MRS, RAMABBAI KAMATH, MUMBAI V. ASST.C.I.T.,RG.25(3), MUMBAI

ITA 3717/MUM/2009

• Counselvise Citation: 371719914 RSA 2009
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 09-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RK GUPTA
• Keywords: Income from undisclosed sources; Retraction
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, MUMBAI. BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A NO.3717/ MUM/2009 ASSESSMENT YEAR: 2004-05 RAMABBAI KAMAT, .. APPELLANT RH-2, GOKUL CONCORDE, NEAR W.E. HIGHWAY, KANDIVALI(E), MUMBAI-101 PA NO.AAPPK 0239 E VS ACIT, RANGE 25(3) ,. RESPONDEN T AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. APPEARANCES: AJAY R. SINGH, FOR THE APPELLANT R.K. GUPTA, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 17.3.2009 OF THE CIT(A)-XXV, IN THE MATTER OF PENALTY UNDER SECTION 2 71(1)(C) OF THE INCOME TAX ACT, 1961 RELATING TO THE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE MATERIAL FACTS ARE LIKE THIS. DURING THE COURSE OF SURVEY, UNACCOUNTED INCOME OF ` .48,77,000 WAS DECLARED BY THE ASSESSEE TOWARDS SUPPRESSED SALES. THE ASSESSING OFFICER FOUND THAT THE ASSE SSEE WAS NOT MAINTAINING ANY STOCK REGISTER AND THAT THE ASSESSEE WAS E STIMATING FIGURES OF OPENING AND CLOSING STOCK FOR WHICH THERE WAS NO BASIS A T ALL. IT WAS ALSO FOUND THAT THE ASSESSEE WAS INDULGING IN SUPPRESSION OF SALES ON REGULAR BASIS, AS STATEMENT PERTAINING TO SUCH SALES SUPPRESSION WAS FOUND RECORDED IN THE COMPUTER OF ASSESSEE. IT WAS IN THIS BACKDROP THAT THE AO WAS OF THE VIEW THAT THE ASSESSEE WAS INDULGING IN SUPPRESSION OF SALES. SUBSEQUENTLY, THE ASSESSE E RETRACTED THE STATEMENT, WHEREIN, DECLARATION OF SUPPRESSED SALES OF ` .48,77,000 WAS MADE. THE I.T.A NO.3717/ MUM/2009 RAMABBAI KAMAT 2 AO DID NOT ACCEPT THE RETRACTION MADE BY THE ASSESSEE A ND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) WERE ALSO INITIATED AGAINST THE ASSESSEE AND FINALLY THE AO LEVIE D THE PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE CARRIED THE MATTER IN APPEAL BUT WITHOUT ANY SUCCESS. 3. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE A SSESSEE PRODUCED A COPY OF ITAT ORDER DATED 11 TH MAY, 2011 IN ITA NO.1659/M/2009 FOR THE ASSESSMENT Y EARS 2004-05 IN QUANTUM APPEAL IN THE CASE OF THE ASSESSEE, WHEREIN, THE ADDITION OF ` .48,77,000 ON ACCOUNT OF SUPPRESSION OF SALES, HAS BEEN DELETED. HE SUBMITTED THAT AS THE VERY BASIS OF ADDITION REGARDING LEVY OF PEN ALTY HAS BEEN DELETED BY THE TRIBUNAL, THE PENALTY HAS TO BE CANCELLED. LEARNED D.R. COUL D NOT CONTROVERT THE AFORESAID SUBMISSIONS OF LEARNED COUNSEL FOR THE ASSESSEE. 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE ORDER OF THE TRIBUNAL DATED 11 TH MAY, 2011 IN QUANTUM APPEAL OF THE ASSESSEE (SUPRA ), WE FIND THE ADDITION IN QUANTUM APPEAL THE ADDITION OF ` .48,77,000 ON ACCOUNT OF SUPPRESSION OF SALES, WHICH WAS THE VERY BASIS OF LEVYING THE PENALTY, HAS BEEN DELETED BY THE TRIBUNAL. THEREFORE, THE PENALTY ORDER OF ASSESSING OFFICER HAS CEASES T O BE DEVOID OF LEGALLY SUSTAINABLE BASIS. IN VIEW OF THIS, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSE E IS ALLOWED. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARI NG I.E. ON 9 TH JUNE, 2011 SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 9 TH JUNE, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XXV, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-25 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH D, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.3717/ MUM/2009 RAMABBAI KAMAT 3 I.T.A NO.3717/ MUM/2009 RAMABBAI KAMAT 4