VEENABEN BIRAWAT, MUMBAI V. ACIT 17(3), MUMBAI

ITA 4208/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100869 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 26-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M OMMAD RIZWAN
• Assessee Lawyers: AJAY NAGPAL
• Keywords: Income from undisclosed sources; Search and seizure
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN,AM AND AMARJIT SINGH, JM ./ I.T.A. NO . 4207 AND 4208 / MUM/20 1 3 ( / ASSESSMENT YEAR : 2 00 5 - 06 AND 20 0 6 - 0 7 ) SMT.VEENABEN BIRAWAT, 105/106, 305/306 - B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI - 400033 / VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 17(3), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : ADSPB9906D (IN ASSESSMENT ORDER MENTIONED AS ADSPB9905A) ./ I.T.A. NO . 4209 , 4210 AND 4211 /MUM/20 13 ( / ASSESSMENT YEAR S : 2 004 - 05 , 200 5 - 06 AND 2006 - 07 ) SHRI VASANTRAJ BIRAWAT, 105/106, 305/306 - B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI - 400033 / VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 17(3), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 ( / APP ELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AACPB5785B ./ I.T.A. NO . 4212, 4213 AND 4214 /MUM/20 1 3 ( / ASSESSMENT YEAR S : 2 004 - 05 , 2005 - 06 AND 2006 - 07 ) SHRI UTTAMCHAND BIRAWAT, 105/106, 305/306 - B BLO CK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI - 400033 / VS. INCOME TAX OFFICER 17(3)(4), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 ( / APPELLANT ) .. ( / RESPONDENT ) ITA. NO . 4207 TO 4214 /M / 20 1 3 2 ./ ./PAN/GIR NO. : AAHPB9195Q / A PPELLANT S BY SHRI AJAY NAGPAL / RE SPONDENT BY SHRI M OMMAD RIZWAN / DATE OF HEARING : 26.8. 2015 / DATE OF PRONOUNCEMENT : 2 6..8 . 201 5 / O R D E R PER B ENCH: ALL THESE ASSESSEES HAVE FILED THESE APPEALS CHALLENGING THE ORDERS PASSED BY LD CIT(A) IN THEIR RESPECTIVE HANDS FOR THE ASSESSMENT YEARS MENTIONED IN THE CAUSE TITLE AGAINST THEIR RESPECTIVE NAMES. SINCE THE ISSUE S URGED IN THESE APPEALS ARE IDENTICAL IN NATURE AND FURTHER SINCE ALL THE ASSESSEES BELONG TO SAME FAMILY, ALL THESE APPEALS WERE HEARD TOGETHER AND THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. ALL THESE ASSESSEES AR E AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT IN ALL THE YEARS UNDER CONSIDERATION. 3. THE FACTS RELATING TO THE CASES ARE STATED IN BRIEF. ALL THESE ASSESSEES BELONG TO BIRAWAT GROUP AND ALL OF THEM ARE FAMILY MEMBERS. THE REVENUE CARRIED OUT SEARCH AND SEIZURE OPERATIONS ARE THE RESIDENTIAL PREMISES OF BIRAWAT GROUP U/S 132 OF THE ACT. CONSEQUENT THERETO, THE ASSESSMENTS WERE COMPLETED BY THE AO U/S 153A /153C OF THE ACT , WHEREIN THE ASS ESSING OFFICER REJECTED THE CLAIM OF LONG TERM CAPITAL GAIN ARISING ON SALE OF SHARES AND ASSESSED THE ENTIRE SALE PROCEEDS AS INCOME FROM OTHER SOURCES. THE AO ALSO MADE ADDITIONS ON ACCOUNT OF ESTIMATED EXPENDITURE IN PROCURING LONG TERM CAPITAL GAINS @ 5% OF GROSS SALE RECEIPTS. THE AO ITA. NO . 4207 TO 4214 /M / 20 1 3 3 WAS ALSO LEVIED PENALTY U/S 271(1)( C) OF THE ACT IN THE RESPECTIVE HANDS OF THE ASSESSEES @ 100% OF THE TAX SOUGHT TO BE EVADED. THE LD CIT(A) CONFIRMED THE PENALTY ORDERS OF THE AO AND HENCE THESE ASSESSEES HAVE FILED THESE APPEALS BEFORE US. 4. AT THE TIME OF HEARING, THE LD.AR SUBMITTED THAT THE ADDITIONS MADE BY THE AO IN THE QUANTUM PROCEEDINGS, WHICH WAS ALSO CONFIRMED BY THE LD. CIT(A) , WERE CHALLENGED BY THESE ASSESSEES BEFORE THE MUMBAI BENCH OF THE TRIBUNAL . THE TRIBUNAL , VIDE ITS COMMON ORDER DATED 20 - 02 - 2015, PASSED IN THE CASE OF SHRI VASANTRAJ BIRAWAT AND OTHERS V/S ACIT IN I.T.A. NO. 989, 990 AND 982/MUM/2010 AND OTHERS HAS DELETED THE ADDITIONS MADE BY THE AO AND RESTORED THE LONG TERM CAPITAL GAINS DECLARED BY THE ASSESSEE. ACCORDINGLY, THE LD A.R SUBMITTED THAT THESE PENALTY ORDERS DO NOT SURVIVE IN VIEW OF THE ORDER OF THE TRIBUNAL, REFERRED ABOVE. 5. THE LD.DR DID NOT CONTROVERT THE FACTUAL ASPECT OF THE MATTER. 6. WE HAVE HEARD THE PARTIES AN D PERUSED THE RECORD. WE FIND THAT IN THE QUANTUM APPEAL, THE TRIBUNAL HAS DELETED THE ADDITION S MADE BY THE AO AND CONFIRMED BY THE LD.CIT(A) AS UNDER: 27. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THERE WAS NO CREDIBL E MATERIAL WITH THE DEPARTMENT TO DISPROVE THE CLAIM OF LONG TERM CAPITAL GAINS MADE BY THESE ASSESSEES IN THEIR RESPECTIVE RETURNS OF INCOME. ACCORDINGLY WE SET ASIDE THE ORDERS OF LD CIT(A) PASSED IN THE RESPECTIVE HANDS OF THE ASSESSEES HEREIN ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE ASSESSMENT OF GROSS SALE RECEIPTS AS INCOME FROM OTHER SOURCES IN ALL THE YEARS UNDER CONSIDERATION AND ACCORDINGLY DIRECT THE AO TO ACCEPT THE LTCG DECLARED BY THESE ASSESSEES IN ALL THE YEARS UNDER CON SIDERATION. 28. SINCE WE HAVE UPHELD THE DISCLOSURE OF LTCG, THE QUESTION OF ASSESSING 5% OF THE GROSS SALE RECEIPTS AS UNACCOUNTED INCOME OF ASSESSEES DOES NOT ARISE. ACCORDINGLY, WE SET ASIDE THE ORDERS OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSES SING OFFICER TO DELETE THIS ITA. NO . 4207 TO 4214 /M / 20 1 3 4 ADDITION IN THE HANDS OF ALL THE ASSESSEES IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. SINCE, THE ADDITION S ON WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED HAS SINCE BEEN DELETED BY THE TRIBUNAL , THE PENALTY ORDERS PASSED B Y THE AO DO NOT HAVE INDEPENDENT LEGS TO STAND ON ITS OWN. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDERS PASSED BY LD CIT(A) DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE ABOVE SAID ASSESSEES FOR THE ASSESSMENT YEARS MENTIONED AGAINST THEIR RESPECTIVE NAMES . 7 . IN THE RESULT, ALL THE APPEALS FILED BY ALL THE ASSESSEES ARE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26 TH AUG , 2015 . 2 6 TH AUG , 2015 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 2 6 TH AUG , 201 5 . . . ./ 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