ITO 18(2)(3), MUMBAI V. FATHER JOSEPH PHILIPS PERIERA, MUMBAI

ITA 3728/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7632 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SUTARIA
• Assessee Lawyers: PARESH SHAH
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, A.M. AND SHRI V. DURGA RAO, J.M. ITA NO. 3728/MUM/2011 ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER-18(2)(3), APPELLANT 105, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012. VS. FATHER JOSEPH PHILPS PERIERA, RESPONDENT OUR LADY OF LOURDES CHURCH, KATEMANIVLI, KALYAN (WEST), (PAN AGJPP2567N) APPELLANT BY : MR. D.K. SUTARIA RESPONDENT BY : MR. PARESH SHAH DATE OF HEARING : 07/03/2012 DATE OF PRONOUNCEMENT : 28/03 /2012 ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF CIT-29, MUMBAI, PASSED ON 28/02/2011 FOR THE ASS ESSMENT YEAR 2005-06 WHEREIN THE REVENUE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING AN ADDITION OF RS. 9,63,949/- MADE U/S 271(1)(C) OF THE ACT. 2. THE FACTS ARE, IN BRIEF, THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,85,920/-, WH ICH WAS PROCESSED U/S 143(3) OF THE ACT ASSESSING THE TOTAL INCOME AT RS. 30,43,169/- MAKING AN ADDITION OF RS. 28,57,246/- U /S 68 OF THE ACT. THE REASON FOR MAKING ADDITION WAS THAT THE AS SESSEE HAD NOT FILED RELEVANT DETAILS AND NOT EXPLAINED THE SOURCE OF DEPOSITS. THEREAFTER, THE AO INITIATED PENALTY PROCEEDINGS U/ S 271(1)(C) OF THE ACT, ON THE GROUND THAT THE ASSESSEE DID NOT FU RNISH NECESSARY PARTICULARS AND COULD NOT EXPLAIN THE SOURCE OF CAS H DEPOSITS AND LEVIED PENALTY OF RS. 9,63,949/- ON THE AMOUNT SOUG HT TO BE EVADED ITA NO. 3728/MUM/2011 FATHER JOSEPH PHILPS PERIERA 2 TAX. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN A PPEAL BEFORE THE CIT(A). THE CIT(A) HELD AS UNDER:- 4. WHILE HEARING THE QUANTUM APPEAL RELATING TO THI S YEAR MATTER HAS BEEN REMANDED TO THE AO. MY PREDECESSOR HAS ADMITTED ADDITIONAL EVIDENCE. IT HAS BEEN FOUND DUR ING APPEAL PROCEEDINGS THAT THE CASH DEPOSITED BELONGED TO THE SCHOOL AND THEY WERE SCHOOL FEES COLLECTED FROM STUDENTS D EPOSITED INTO APPELLANTS ACCOUNT AND LATER ON TRANSFERRED T O SCHOOL ACCOUNT. APPELLANT WAS A FATHER OR CHIEF PRIEST HEA DING THE SCHOOL AND MANAGING THE AFFAIRS OF THE SCHOOL. THER E WERE ENOUGH EVIDENCE TO CONCLUDE THAT THE CASH DEPOSITED BELONGED TO THE SCHOOL AND ULTIMATELY WAS DEPOSITED INTO THE SCHOOLS ACCOUNT. ON THE BASIS OF THIS FINDING THE QUANTUM A DDITION HAS BEEN DELETED BY THIS OFFICE IN ORDER NO. CIT(A)-29/ RG- 18/107/07-08 DATED 28/02/2011 FOR THIS VERY ASSESSM ENT YEAR. 5. AS THE QUANTUM ADDITION IS DELETED, THERE IS NO ROOM TO CONCLUDE THAT APPELLANT FILED INACCURATE PARTICULAR S OF INCOME AND ACCORDINGLY THE PENALTY LEVIED IS DELETED. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 3. BEFORE US, IT WAS SUBMITTED BY THE LEARNED COUNS EL FOR THE ASSESSEE THAT ACROSS THE BAR THAT AGAINST THE ORDER OF CIT(A) IN THE QUANTUM PROCEEDINGS, THE REVENUE HAS NOT PREFERRED ANY APPEAL. 4. AFTER HEARING THE LEARNED DR AND PERUSING THE RE CORD AS WELL AS THE ORDERS OF THE AUTHORITIES BELOW, WE ARE OF T HE VIEW THAT SINCE THE QUANTUM ADDITION ITSELF HAS BEEN DELETED, LEVYI NG PENALTY ON SUCH NON EXISTENT ADDITION CANNOT HAVE LEGS TO WITH STAND IN THE EYE OF LAW. THEREFORE, WE FIND NO INFIRMITY IN THE ORDE R OF THE CIT(A) IN DELETING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. ACCORDINGLY, WE DISMISS THE GROUND OF APPEAL OF THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MARCH, 2012. SD/- SD/- (B. RAMAKOTAIAH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 28 TH MARCH, 2012. KV ITA NO. 3728/MUM/2011 FATHER JOSEPH PHILPS PERIERA 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, F BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.