SHRI NANDKISHOR BHASIN, MUMBAI V. THE CIT (A) XXI, MUMBAI

ITA 4089/MUM/2007

• Counselvise Citation: 408919914 RSA 2007
• Duration Of Justice: 4 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 07-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 28-05-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Assessee Lawyers: SAMEER DALAL
• Keywords: Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 4089/MUM./2007 (ASSESSMENT YEAR: 2001-02 ) DATE OF HEARING 7.6.2011 DATE OF DICTAT ION : 8.6.2011 NANDKISHOR BHASIN 3 RD STEEL YARD SANT TUKARAM ROAD IRON MARKET, MUMBAI 400 009 PAN AABPB6980H .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-21(2), MUMBAI .... RESPONDENT ASSESSEE BY : MR. SAMEER DALAL REVENUE BY : MR. T.T. JACOB O R D E R PER D.K. AGARWAL, A.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 15 TH MARCH 2007, PASSED BY THE LEARNED CIT(A) FOR ASSES SMENT YEAR 2001-02, SUSTAINING THE PENALTY OF ` 1,66,361, IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT, 1961 (FOR SHORT 'THE ACT' ). 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT, I N THIS CASE, THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COM PLETED DETERMINING A TOTAL INCOME OF ` 10,87,653, VIDE ORDER DATED 29 TH MARCH 2004, WHEREIN THE NANDKISHOR BHASIN ITA NO.4089/MUM./2007 2 ADDITION OF ` 4,73,963, WAS MADE BY THE ASSESSING OFFICER ON ACC OUNT OF DISALLOWANCE OF TRANSPORT AND FREIGHT CHARGES PAID TO M/S. MITHILESH MOVERS. ON APPEAL, THE LEARNED CIT(A) CONFIRMED THE DISALLO WANCE MADE BY THE ASSESSING OFFICER. SINCE DURING THE ASSESSMENT PROC EEDINGS, THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS UNDER SE CTION 271(1)(C) OF THE ACT, THE ASSESSING OFFICER ISSUED NOTICE TO SHOW CAUSE A S TO WHY PENALTY UNDER SECTION 271(1)(C) SHOULD NOT BE IMPOSED. IN RESPONS E, IT WAS, INTER-ALIA, SUBMITTED BY THE ASSESSEE THAT SINCE THE ASSESSEE H AS FILED APPEAL BEFORE THE TRIBUNAL, THE PROCEEDINGS INITIATED MAY BE KEP T IN PENDING. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES REQUEST AND DECIDED TO PROCEED ON MERITS. THE ASSESSING OFFICER NOTED IN T HE PENALTY ORDER IN PARA-5 THAT THE PROPRIETOR OF M/S. MITHILESH MOVERS, THE R ECIPIENT OF TRANSPORT CHARGES COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER EITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR DURING THE COUR SE OF PENALTY PROCEEDINGS. THE ASSESSING OFFICER FURTHER NOTED TH AT THAT THE ADDRESS PROVIDED WAS INCOMPLETE AND THE ASSESSING OFFICER H AD CARRIED OUT THE ENQUIRY DURING THE PROCEEDINGS BEFORE HIM FOR VERIF ICATION. RESULT OF ENQUIRY MADE BY THE ASSESSING OFFICER FOR WHEREABOUTS OF M/ S. MITHILESH MOVERS, COULD NOT BE ASCERTAINED. THE ASSESSING OFFICER IN VIEW OF THE FINDINGS RECORDED IN THE ASSESSMENT, CONCLUDED THAT THE TRAN SACTION WITH M/S. MITHILESH MOVERS WAS NOT GENUINE, THEREFORE, THE CL AIM OF EXPENDITURE OF ` 4,73,963 WAS IN THE NATURE INACCURATE PARTICULARS AND TO THAT EXTENT, THE CONCEALMENT OF INCOME AND, ACCORDINGLY, HE IMPOSED PENALTY ON THE SAME INCOME OF ` 4,73,963 AMOUNTING TO ` 1,66,361, VIDE ORDER DATED 27 TH MARCH 2006, PASSED UNDER SECTION 271(1)(C) OF THE ACT. 3. ON APPEAL, THE LEARNED CIT(A), WHILE OBSERVING T HAT THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS, AGREEING WITH THE VIE WS OF THE ASSESSING OFFICER AND CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 4. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT( A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUND OF APPEAL THE SUSTENANCE OF NANDKISHOR BHASIN ITA NO.4089/MUM./2007 3 PENALTY OF RS.1,66,361 IMPOSED BY THE ASSESSING OFF ICER UNDER SECTION 271(1)(C) OF THE ACT. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL SUBM ITS THAT SINCE THE TRIBUNAL, IN THE QUANTUM APPEAL, HAS SET ASIDE THE ISSUE OF ADDITION OF TRANSPORT CHARGES PAID TO M/S. MITHILESH MOVERS, TO THE AO, THEREFORE, THE PENALTY MAY BE SET ASIDE. 6. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE SUPPORTS THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). 7. HAVING CAREFULLY HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ASSESSING OFFICER HAS IMPOSED PENALTY ON THE SUSTENANCE OF ADDITION O F TRANSPORT CHARGES OF ` 4,73,963 PAID TO M/S. MITHILESH MOVERS. THE TRIBUNA L, IN QUANTUM APPEAL, IN ASSESSEES CASE IN SHRI NANDKISHOR BHASIN V/S JT. C OMMISSIONER OF INCOME TAX IN ITA NO.2636/MUM./2005 FOR ASSESSMENT YEAR 2001-02, ORDER DATED 4 TH MARCH 2011, HOWEVER, SET ASIDE THE ISSUE TO THE FI LE OF THE ASSESSING OFFICER FOR RE-EXAMINATION OF THE MATTER AFTER ASKI NG THE ASSESSEE TO PRODUCE M/S. MITHILESH MOVERS AND THEN DECIDE THE ISSUE IN ACCORDANCE WITH LAW. SINCE THE TRIBUNAL HAS SET ASIDE THE ADDITION TO TH E FILE OF THE ASSESSING OFFICER ON WHICH THE ASSESSING OFFICER HAS IMPOSED PENALTY, THEREFORE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, TH E MATTER OF PENALTY MAY ALSO BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER A ND, ACCORDINGLY, SET ASIDE THE ORDERS PASSED BY THE REVENUE AUTHORITIES ON THI S ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AND IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. NANDKISHOR BHASIN ITA NO.4089/MUM./2007 4 8. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE, 2011. SD/- SD/- SD/- T.R. SOOD ACCOUNTANT MEMBER SD/- D.K. AGARWAL JUDICIAL MEMBER MUMBAI, DATED: 24 TH JUNE 2011. SRL COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, I BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI NANDKISHOR BHASIN ITA NO.4089/MUM./2007 5 DATE INITIAL 1. DRAFT DICTATED ON 8.6.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR .6.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .6.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. DATE OF PRONOUNCEMENT SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER