DCIT CC 12, MUMBAI V. PARESH M. KARIYA HUF, MUMBAI

ITA 440/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1678 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJSWARI DWIVEDI
• Assessee Lawyers: B V JHAVERI
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR RAO , A M ITA NO. 440 / MUM / 20 1 2 ( ASSESSMENT YEAR : 200 5 - 06 ) DCIT CC 12, MUMBAI - 400 020 VS. PARESH M.KARIYA HUF, 13 KAHIAWAR CHS, GULMOHAR CROSS ROAD, ROAD NO. 12,JVPD SCHEME, MUMBAI - 49 . PAN/GIR NO. : A A BHP 6818 C ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO. 44 4 / MUM /20 12 ( ASSESSMENT YEAR :2005 - 06 ) DCIT CC 12, MUMBAI - 400 020 VS. PARESH M.KARIYA, 13 KAHIAWAR CHS, GULMOHAR CROSS ROAD, ROAD NO.12,JVPD SCHEME, MUMBAI - 49. PAN/GIR NO. : A A EPK 0469 M ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI RAJSWARI DWIVEDI /ASSESSEE BY : SHRI B.V.JHAVERI DATE OF HEARING : 1 7 TH JAN ., 201 3 DATE OF PRONOUNCEMENT : 01 / 03 / 201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED TH ESE TWO APPEALS AGAINST THE ORDER DATED 10 - 1 0 - 2011 , PASSED BY THE CIT(A) - 37 , MUMBAI , RE LATING TO ASSESSMENT YEAR 2005 - 0 6 . ITA NO S . 440&444 /20 1 2 2 2 . SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE CASES, THEREFORE, FOR THE SAKE OF CONVENIENCE , BOTH THESE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER TOGETHER. 3 . THE DEPARTMENT IS OBJECTING IN DELET ING THE P ENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) IN THESE TWO CASES AT RS. 7,88,846/ - & RS.7,28,326/ - , RESPECTIVELY. ADDITIONS IN THESE TWO CASES WERE MADE ON THE BASIS OF SEARCH IN THE CASE OF GROUP CASES AND ON THE BASIS OF STATEMENT OF THE DIREC TOR SHARE BROKER M/S DPS SHARES & SECURITIES PVT. LTD., WHO HAS ADMITTED THAT THEY WERE ISSUING BOGUS BILLS AND IN FACT NO DELIVERY OF SHARES HAS BEEN GIVEN BY THEM. THE AO HAS TREATED THE AMOUNT OF CAPITAL GAIN AS UNEXPLAINED INCOME UNDER SECTION 68. A FU RTHER ADDITION AT THE RATE OF 5% WAS ALSO MADE ON ACCOUNT OF COMMISSION PAID. THEREAFTER THE AO LEVIED PENALTY UNDER SECTION 271(1) (C). 4. APPEALS WERE PREFERRED BEFORE THE CIT(A) AGAINST THE ASSESSMENT ORDER AND THE CIT(A) HAS ALSO CONFIRMED THE ORDER OF THE AO. APPEALS WERE ALSO PREFERRED BEFORE THE TRIBUNAL AND THE TRIBUNAL WHILE DECIDING THE APPEAL OF SHRI PARESH M. KARIYA (HUF) IN ITA NO. 790/M/2010 AND IN CASE OF PARESH M. KARIYA IN ITA NO. 789/M/2010, VIDE ORDER DATED 10 - 12 - 2011, HAS DELETED THE QUANT UM OF ADDITION MADE BY THE AO. COPY OF THESE ORDERS ARE PLACED ON RECORD. 5 . AGAINST THE PENALTY ORDER, BOTH THESE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHO AFTER CONSIDERING THE VARIOUS ORDER OF THE ITA NO S . 440&444 /20 1 2 3 TRIBUNAL, FOUND THAT THE PENALTY LEVIED BY THE AO WAS NOT JUSTIFIED. ACCORDINGLY, IN BOTH THESE CASES THE PENALTY HAVE BEEN DELETED BY THE CIT(A) . AGAINST THE DELETION OF PENALTY, NOW THE DEPARTMENT IS IN APPEALS HERE BEFORE THE TRIBUNAL. 6 . AFTER CONSIDERING THE ORDER OF THE AO, CIT(A) , ON WHICH RELI ANCE HAS BEEN PLACED BY THE LEARNED DR AND LEARNED AR OF THE ASSESSEE, WE FOUND THAT CIT(A) W AS JUSTIFIED IN DELETING THESE PENALTIES AFTER CONSIDERING VARIOUS ORDER OF SIMILAR IN NATURE PASSED BY THE TRIBUNAL. ALL THESE CASES HAVE BEEN MEN TIONED IN THE OR DER OF CIT(A). WE FURTHER NOTED THAT THE QUANTUM ADDITION MADE BY THE AO, WHICH WAS CONFIRMED BY THE CIT(A) H AVE BEEN DELETED BY THE TRIBUNAL IN THE CASE OF BOTH THE ASSESSEES. SINCE THE QUANTUM ADDITION ON WHICH BASIS THE PENALTY WAS LEVIED BY THE AO, HAS ALREADY BEEN DELETED, SO THERE IS NO QUESTION OF SUSTAINING THE PENALTY UNDER SECTION 271(1)(C). ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) IN THE CASE OF BOTH THESE ASSESSEES. 7 . RESULTANTLY , BOTH THE APPEAL S OF THE DEPARTMENT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST DAY OF MAR . 2012. 201 3 SD / - ( ) ( D.KARUNAKAR RAO ) SD / - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 1 / 0 3 / 201 3 . /PKM , PS ITA NO S . 440&444 /20 1 2 4 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI . 4. / CIT 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI