ITO 2(2)(4), MUMBAI V. MANISH AJAY DOSHI, MUMBAI

ITA 445/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4321 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MISHRA
• Section: 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND AMARJIT SINGH , JM ./ I.T.A. NO . 445 / MUM/ 20 1 2 ( / ASSESSMENT YEA R : 20 0 5 - 06 ) INCOME TAX OFFICER WARD 2(2)(4), ROOM NO.542, 5 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020. / VS. SMT.MANISHA AJAY DOSHI, C - 21, MAKER TOWER, G D SOMANI MARG, CUFFE PARADE, MUMBAI - 400005. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AADPD8395E / APPELLANT BY SHRI S K MISHRA / RESPONDENT BY SHRI SHASHI TULSIYAN / DATE OF HEARING : 3 1 .12 .2015 / DATE OF PRONOUNCEMENT: 1.1 .2016 / O R D E R P ER B R BASKARAN, AM : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 24.10.2011 PASSED BY LD CIT(A) - 37, MUMBAI CONFIRMING THE PENALTY OF RS.33,13,895/ - LEVIED BY THE AO U/S 271 (1) ( C ) OF THE ACT. 2. THE LD.COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT RELATING TO THE IMPUGNED PENALTY WAS COMPLETED U/S 153A OF THE ACT CONSEQUENT TO THE SEARCH OPERATIONS CONDUCTED U/S 132 ON 17.1. 2007. DURING THE COURSE OF SEAR CH PROCEEDINGS, THE SEARCH TEAM DID NOT UNEARTH ANY INCRIMINATING MATERIAL RELATING TO THE YEAR UNDER CONSIDERATION . THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION DID NOT ABATE BY VIRTUE OF SEARCH OPERATIONS. H ENCE THE ASSESSEE RAISED A LEGAL ITA NO. 445 / MUM/ 201 2 2 ISSUE CHAL LENGING THE VALIDITY OF THE ADDITIONS MADE IN RESPECT OF A CONCLUDED ASSESSMENT WITHOUT THERE BEING ANY INCRIMINATING MATERIAL IN THE APPEAL FILED AGAINST THE QUANTUM ASSESSMENT PROCEEDINGS BEFORE TRIBUNAL. THE ASSESSEE PLAC ED HIS RELIANCE ON THE DECISION RENDERED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD V/S DCIT REPORTED IN 137 ITD 237. THE CO - ORDINATE BENCH OF THE TRIBUNAL ACCEPTED THE CONTENTION S OF THE ASSESSEE AND ACCORDINGLY, HELD THAT THE ADDITION CANNO T BE MADE FOR THE YEAR UNDER CONSIDERATION IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. ACCORDINGLY, THE LD. AR SUBMITTED THAT THE ADDITION ON WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED STOOD VACATED BY THE ORDER DATED 30.11.2015 PASSED BY THE CO - ORDIN ATE BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005 - 06 IN ITA NO.441/MUM/2010. ACCORDINGLY, THE LD.AR SUBMITTED THAT THE IMPUGNED PENALTY ORDER IS LIABLE TO BE QUASHED. 3 . THE LD. DR DID NOT OBJECT TO THE FACTUAL ASPECT S PRESENTED BY THE LD. AR . 4. SINCE THE ADDITION, ON WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED , HAVE SINCE BEEN DELETED BY THE TRIBUNAL , THE IMPUGNED PENALTY IS LIABLE TO BE CANCELLED. ACCORDINGLY , WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE IMPUGNED P ENALTY. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 1ST JAN,2016 . 1ST JAN, 2016 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 1ST JAN , 2015 . . . ./ SRL , SR. PS ITA NO. 445 / MUM/ 201 2 3 / 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