DEEPAK BHOGILAL SHAH, MUMBAI V. JT CIT 19(2), MUMBAI

ITA 4655/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3160 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 31-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAKSHMI NAYAKLD
• Assessee Lawyers: VIJAY KUMAR BIYANILD ARS
• Section: 142(1); 69A; 22

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.4647/MUM/2018 ( / ASSESSMENT YEAR : 2006-07 ) & ./ I.T.A. NO.4655/MUM/2018 ( / ASSESSMENT YEAR : 2007-08 ) & ./ I.T.A. NO.4648/MUM/2018 ( / ASSESSMENT YEAR : 2007-08 ) DEEPAK BHOGILAL SHAH 61-A, 6 TH FLOOR, LAXMI VILAS 87, NAPEAN SEA ROAD MUMBAI-400 006. / VS. J CIT - RANGE - 16(2) MUMBAI. &' ./ ./PAN/GIR NO. AACPS-0199-L ( ') /APPELLANT ) : ( *+') / RESPONDENT ) ASSESSEE BY : MS. AARTI VISSANJI & SHRI VIJAY KUMAR BIYANI-LD.ARS REVENUE BY : MS. JYOTI LAKSHMI NAYAK -LD. DR / DATE OF HEARING : 06/02/2020 / DATE OF PRONOUNCEMENT : 12/03/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YEA RS [IN SHORT REFERRED TO AS AY] 2006-07 & 2007-08 CONTEST SEPA RATE ORDERS OF LEARNED FIRST APPELLATE AUTHORITY QUA CONFIRMATION OF PENALTY. SINCE FACTS 2 WERE, MORE OR LESS SIMILAR, THE APPEALS WERE HEARD TOGETHER AND ARE NOW BEING DISPOSED-OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST, WE TAKE UP APPEAL I TA NO. 4655/MUM/2018 FOR AY 2007-08 ITA NO. 4655/MUM/2018, AY 2007-08 2.1 THE ASSESSEE CONTEST THE ORDER OF LD. COMMISSIO NER OF INCOME- TAX (APPEALS)-4, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], ORDER DATED 17/05/2018 QUA CONFIRMATION OF PENALTY U/S 271(1)(C ) FOR RS.92,300/-. 2.2 FACTS LEADING TO IMPOSITION OF PENALTY ARE THAT THE ASSESSEE WAS ASSESSED U/S143(3) R.W.S. 147 ON 18/03/2014 WHEREIN IT WAS SADDLED WITH ADDITIONS OF RS.599.75 LACS U/S 69A ON ACCOUNT OF UNDISCLOSED INCOME. HOWEVER, UPON FURTHER APPEAL TO LEARNED FIR ST APPELLATE AUTHORITY, THE QUANTUM ADDITIONS WERE SUBSTANTIALLY REDUCED TO RS.2,74,007/-. CONSEQUENTLY, THE ASSESSEE WAS SADDLED WITH PENALTY OF RS.92,300/- VIDE PENALTY ORDER DATED 12/06/2015. THE SAME UPON CONFIRMATION BY LD. CIT(A) VIDE IMPUGNED ORDER DATED 17/05/2018, IS UND ER APPEAL BEFORE US. 3. THE LD. COUNSEL FOR ASSESSEE, AT THE OUTSET, SUB MITTED THAT QUANTUM ADDITION AS SUSTAINED BY LD. CIT(A) WAS SUB JECT MATTER OF APPEAL BEFORE THIS TRIBUNAL VIDE ITA NOS.6065-66/MU M/2014 & OTHERS, COMMON ORDER DATED 30/10/2018 WHEREIN THE QUANTUM A DDITION OF RS.2,74,007/- HAS BEEN DELETED BY THE TRIBUNAL. THE COPY OF THE ORDER HAS BEEN PLACED ON RECORD. THE LD. DR COULD NOT CON TROVERT THE SAME. 4. UPON DUE CONSIDERATION, WE FIND THAT SINCE QUANT UM ADDITIONS WHICH FORM THE VERY BASIS OF LEVY OF PENALTY ARE DE LETED, THERE REMAIN NO BASIS FOR IMPOSITION OF PENALTY AND THE SAME IS LIA BLE TO BE CANCELLED. ACCORDINGLY, BY DELETING THE SAME, WE ALLOW THE APP EAL. 3 ITA NO.4647-48/MUM/2018, AYS 2006-07 & 2007-08 5. BY WAY OF APPEAL FOR AY 2006-07, THE ASSESSEE CO NTEST PENALTY OF RS.10,000/- AS IMPOSED BY LD. AO U/S 271(1)(B). THE PERUSAL OF PENALTY ORDER U/S 271(1)(B) DATED 18/07/2014, PASSED BY LD. AO, WOULD REVEAL THAT THE PENALTY HAS BEEN LEVIED SINCE DURING ASSES SMENT PROCEEDINGS IT WAS ALLEGED THAT THE ASSESSEE HELD CERTAIN BANK ACC OUNT WITH HSBC, GENEVA. A NOTICE U/S 142(1) WAS ISSUED TO THE ASSES SEE ON 03/01/2014 WHEREIN THE ASSESSEE WAS REQUESTED TO FURNISH THE S TATEMENT OF SAID BANK ACCOUNT SINCE INCEPTION. ALTERNATIVELY, THE AS SESSEE WAS REQUESTED TO FILL UP THE CONSENT WAIVER FORM ENCLOSED WITH TH E LETTER AND FORWARD THE SAME TO LD. AO. HOWEVER, IN RESPONSE, THE ASSESSEE DENIED OWNERSHIP OF THE SAID BANK ACCOUNT AND ALSO DID NOT FURNISH T HE DETAILS AS CALLED FOR BY LD. AO. CONSEQUENTLY, THE ASSESSEE WAS SADDLED W ITH PENALTY U/S 271(1)(B) FOR RS.10,000/-. SIMILAR PENALTY OF RS.10 ,000/- WAS LEVIED FOR AY 2007-08 ALSO, UNDER IDENTICAL FACTS. THE SAME UP ON CONFIRMATION BY LD. CIT(A) VIDE SEPARATE ORDERS BOTH DATED 17/05/20 18, IS UNDER FURTHER APPEAL BEFORE US. 6. THE LD. AR SUBMITTED THAT THE SAID BANK ACCOUNT DID NOT BELONG TO THE ASSESSEE AND THE INFORMATION AS CALLED FOR BY L D. AO WAS NOT IN THE POSSESSION OF THE ASSESSEE. OUR ATTENTION HAS BEEN DRAWN TO THE DOCUMENTARY EVIDENCES WHEREIN THE ASSESSEE DENIED T HE OWNERSHIP OF THE STATED BANK ACCOUNT. THE LD. AR SUPPORTED THE S UBMISSIONS ON THE STRENGTH OF ORDER OF TRIBUNAL FOR AYS 2006-07 & 200 7-08, ITA NOS.6065- 66/MUM/2014 & OTHERS, COMMON ORDER DATED 30/10/2018 WHEREIN THE QUANTUM ADDITIONS IN BOTH THE YEARS WERE DELETED, F INDING MERITS IN ASSESSEES SUBMISSIONS. 4 7. UPON CAREFUL CONSIDERATION, WE FIND SUBSTANCE IN LD. ARS SUBMISSIONS SINCE THE ASSESSEE HAD RESPONDED TO THE NOTICE ISSUED U/S 142(1) AND IT COULD NOT BE SAID THAT THERE WAS NON- COMPLIANCE OF THE SAME ON THE PART OF THE ASSESSEE. THE PENALTY HAS B EEN IMPOSED FOR NON-SIGNING OF CONSENT-WAIVER FORM AS AGAINST THE SUBMISSIONS OF THE ASSESSEE WHEREIN IT DENIED THE OWNERSHIP OF STATED BANK ACCOUNT AND EXPRESSED INABILITY TO SUBMIT THE DESIRED INFORMATI ON / DETAILS. THESE FACTS REMAIN UNCONTROVERTED. THE SAME IS ALSO EVIDE NT FROM THE FACT THAT ULTIMATELY THE QUANTUM ADDITIONS FOR BOTH THESE YEA RS HAVE BEEN DELETED BY THE TRIBUNAL. THEREFORE, THE PENALTY WOULD NOT B E SUSTAINABLE IN THE EYES OF LAW. THE SAID CONCLUSION IS WELL SUPPORTED BY THE DECISION OF THIS TRIBUNAL IN ITA NOS.4653-54/MUM/2018 ORDER DATED 22 /10/2019 PASSED IN THE RELATED CASE OF KUNAL NIKUNJ SHAH V/S JCIT WHEREIN PENALTY- IMPOSED U/S 271(1)(B), UNDER IDENTICAL FACTUAL MATR IX, WAS DELETED. THEREFORE, BY DELETING THE SAME, WE ALLOW BOTH THES E APPEALS. CONCLUSION 8. ALL THE APPEALS STAND ALLOWED IN TERMS OF OUR AB OVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 12TH MARCH, 2 020. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 12/03/2020 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT 5 3. 2 ( ) / THE CIT(A) 4. 2 / CIT CONCERNED 5. * , , / DR, ITAT, MUMBAI 6. 678 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.