Smt. SUSHILBEN G DALAL, MUMBAI V. ITO-22(3)(4), MUMBAI

ITA 4237/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1830 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Income from undisclosed sources
• Section: 271(1)(c); 54EC; 22; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO. 4237 /MUM/2019 ASSESSMENT Y EAR: 2008 - 09 SMT. SUSHILABEN G DALAL, 302, BLOSSOM, OPP SCB BANK, SC B BANK, S V ROAD, SANTACRUZ (WEST), MUMBAI - 400054 PAN: AAAPD7752J VS. ITO WARD 22 (3) (4), ROOM NO. 304, 3 RD FLOOR, PIRAMAL CHAMBERS, MUMBAI - 400012 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI T.S. KHALSA ( D R ) DATE OF HEARING: 31 /05 /20 21 DATE OF PRONOUNCEMENT: 28 / 06 /202 1 O R D E R PER SAKTIJIT DEY , JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 18.01.2019 OF L EARNED COMMISS IONER OF INCOME TAX (APPEALS) 34 , MUMBAI CONFIRMING THE PENALTY IMPOSED OF RS. 1,24,843 UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT , 1961 FOR THE ASSESSMENT YEAR 2008 - 09 . 2. BRIEFLY THE FACTS ARE , THE ASSESSEE IS AN INDIVIDUAL . F OR TH E ASSESSMENT YEAR UNDER DISPUTE, T HE ASSESSEE FILED HER RETURN OF INCOME ON 02.09.2009 DECLARING TOTAL INCOME OF RS. 3,97,700/ - . SUBSEQUENTLY, BASED UPON A SURVEY CONDUCTED IN CASE OF M/S SHIVAM CORPORATION AND ONE OF ITS PARTNER, THE ASSESSING OFFICER (AO) REOPEN ED THE ASSESSMENT UNDER SECTION 147 OF THE ACT ON THE REASONING THAT THE ASSESSEE HAS EARNED INCOME FROM UNDISCLOSED SOURCES AND HAS ALSO WRONGLY CLAIMED DEDUCTION UNDER SECTION 54EC OF THE 2 ITA NO. 4237 / MUM/2019 ASSESSMENT YEAR: 2008 - 09 ACT. ULTIMATELY, THE AO COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 31.01.2013 AFTER MAKING ADDITION OF RS. 4,04,024/ - FROM UNDISCLOSED SOURCES AND D ISALLOWING DEDUCTION CLAIMED UNDER SECTION 54EC OF THE ACT. AGAINST THE ASSESSMENT ORDER SO PASSED , THE ASSESSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) AND THE REAFTER BEFORE THE TRIBUNAL. DURING THE PENDENCY OF ASSESSEES APPEAL, THE ASSESSING OFFICER, BASED ON THE ADDITION MADE IN THE ASSESSMENT ORDER , INITIATED PROCEEDIN GS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1) (C) OF THE ACT IN RESPECT OF ADDITION OF R S. 4,04,024/ - AND ULTIM ATELY PASSED AN ORDER ON 26.03. 2015 IMPOSING PENALTY OF RS. 1,24,843/ - . A GAINST THE PENALTY ORDER SO PASSED , THE ASSESSEE PR EFERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). HOWEVER, THE PENALTY IMPOSED WAS CONFIRMED. 3 . WHE N THE APPEAL WAS CALLED FOR HEARING, NONE APPEAR ED ON BEHALF OF THE ASSESSEE TO REP RESENT THE CASE. HOWEVER, CONSIDERING THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA TH E ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTAT IVE AND ON THE BASIS OF MATERIALS ON RECORD. 4. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE SUBJE CT MATTER OF PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT IS THE ADDITION OF RS. 4,04,02 4/ - MADE IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) R.W.S. 147 OF THE ACT. AS STATED EARLIER , AGAINST THE ASSESSMENT ORDER SO PASSED THE ASSESSEE HAD PR EFERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) AND THEREAFTER BEFORE THE TRIBUNAL. WHI LE DECIDING THE AFORESAID APPEAL, THE TRIBUNAL IN ITA NO. 1864/MUM/2014 DATED 13.05.2016 HAS RESTORED THE ISSUE RELATING TO ADDITION OF RS. 4,04,024/ - TO THE AO FOR DECIDING AFRESH. THUS, ON RESTORATION OF THE ISSUE BACK TO THE ASSESSING OFFICER, THE BASIS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1) (C) OF THE ACT STOOD/OBLITERATED. THAT BEING THE CASE , THE IMPUGNED ORDER PASSED BY LEARNED COMMISSIONER (APPEALS) CO NFIRMING THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT CANNOT BE SUSTAINED. 3 ITA NO. 4237 / MUM/2019 ASSESSMENT YEAR: 2008 - 09 5. EVE N , OTHERWISE ALSO , AS COULD BE SEEN FROM THE STATEMENT OF FACTS AND GROUNDS OF APPEAL FILED BY THE ASSESSEE , IN PURSUANCE TO THE DIRECTION OF THE TRIBUNAL, THE AO HAS PASSED A FRESH ASSESSMENT ORDER UNDER SECTION 143 (3) OF THE ACT R.W.S. 254 OF THE ACT, WH EREIN , NO PENALTY PROCEEDING UNDER SECTION 271(1) (C) OF THE ACT WAS INITIATED. THUS, IT IS VERY MUCH CLEAR , THE A O WAS CONVINCED THAT NO CASE UNDER SECTION 271(1) (C) OF THE ACT WAS MADE OUT AGAINST THE ASSESSEE. IN ANY CASE OF THE MATTER , AS DISCUSSED EARL IER , THE ADDITION THE BASED ON WHICH THE PENALTY ORDER UNDER SECTION 271(1)(C) OF THE ACT WAS PASSED HAVING LOST ITS EXISTENCE , THE PENALTY ORDER CANNOT SURVIVE. ACCORDINGLY, WE DELETE THE PENALTY IMPOSED OF RS. 1,24,843/ - . GROUNDS ARE ALLOWED. 5. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JUNE , 2021 . SD/ - SD/ - ( S. RIFAUR RAHMAN ) ACCOUNTANT MEMBER ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 28 / 06 /202 1 ALINDRA, 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