JAYANTILAL C. JAIN, MUMBAI V. ITO 15(1)(1), MUMBAI

ITA 5488/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8063 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 02-03-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 02-12-2015
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: DARSHAN GANDI
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.5488/MUM./2015 ( ASSESSMENT YEAR :2004 - 05 ) JAYANTILAL C. JAIN, PROP RAJGURU JEWELLERY MART, 621, COTTON EXCHANGE BLDG. 6 TH FLOOR, KALABADEVI ROAD, MUMBAI 400 002 PAN ABOPJ3987G . APPELLANT V/S ITO 15(1)(1) MUMBAI . RESPONDENT ASSESSEE BY : SHRI. DARSHAN GANDI REVENUE BY : SHRI. RAJESH KUMAR YADAV DATE OF HEARING 02.03.2017 DATE OF ORDER 07.03.2017 O R D E R PER: SHAMIM YAHYA T HIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT - A DATED 22/6/2015 WHEREIN HE HAS CONFI RMED THE LEVY OF PENALTY OF RS.2,06,993/ - U/S. 271 (1) C OF THE INCOME TAX ACT, WHICH PERTAINS TO ASSESSMENT YEAR 2004 - 05 2. A T THE OUTSET IN THIS CASE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE IN THE QUANTUM APPEAL HAS BEEN SET ASIDE JAYANTILAL C. JAIN ITA NO.5488/MUM./2015 2 BY THE IT A T. HENCE HE PLEADED THAT THIS PENALTY ORDER ALSO NEEDS TO BE SET ASIDE. PER CONTRA LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT A PART OF THE ISSUE S WHICH LED TO THE LEVY OF PENALTY HAS ALSO BEEN CONFIRMED BY THE ITAT. HENCE HE SUBMITTED THAT T HE ENT IRE PENALTY NEED NOT BE SET ASIDE. IN REJOINDER LD. C OUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE ON WHICH ITAT HAS CONFIRMED THE ADDITION ONLY RELATES TO ADHOC /ESTIMATED ADDITION WHICH DOESN'T WARRANT LEVY OF PENALTY. 3. UP ON CAREFUL C ONSIDERATION WE NOTE THAT THIS ITAT IN ITA NO. 7190 AND OTHERS VOID ORDER DATED 27/4/2016, HAS ADJUDICATED THE MERITS OF THE ISSUES ON WHICH PENALTY WAS LEVIED. WE FIND THAT A MAJOR PART OF THE ADDITION RELATED TO ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT. THE AMOU NT INVOLVED WAS RS.6,06, 600 / - BE ING UNSECURED LOAN AND RS. 27,109 / - INTEREST THEREON. WHILE ADJUDICATING THIS ISSUE ITAT HAD RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION. ANOTHER ISSUE ON WHICH THE PENALTY WAS LEVIED RELATE D TO AD HOC DISALLOWANCE OF TELEP HONE EXPENSE AMOUNTING TO RS. 2,385 . THIS ISSUE WAS DECIDED BY THE IT AT IN FAVOUR OF THE REVENUE . ON THIS ISSUE IT IS THE CONTENTION OF THE LD. C OUNSEL OF THE ASSESSEE THAT SINCE THE ISSUE RELATES TO AD HOC DISALLOWANCE ASS ESSEE CANNOT BE HELD GUILTY OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS. 4. UP ON CAREFUL CONSIDERATION WE FIND THAT EXCEPT FOR THE ISSUE OF A D HOC DISALLOWANCE OF RS. 2, 385 / - THE ITAT HAS RESTORED THE ISSUES TO THE FILE OF THE ASSESSING OFFICE R FOR FRESH EXAMINATION. IN THE SE CIRCUMSTANCES IN JAYANTILAL C. JAIN ITA NO.5488/MUM./2015 3 OUR CONSIDERED OPINION THE ISSUE RELATING LEVY OF PENALTY ALSO NEEDS TO BE CONSIDERED AFRESH BY THE ASSESSING OFFICER AFTER ADJUDICATION UP ON THE MERITS AS RESTORED BY THE ITAT IN THE ORDER ON MERITS AS R EFER RED ABOVE. ACCORDINGLY, THE ISSUE RAISED IN THIS APPEAL IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER THE ISSUE OF LEVY OF PENALTY AFRESH AFTER ADJUDICATION UP - ON THE MERITS OF THE ISSUE AS REMITTED ABOVE. IN THE RESULT THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2017 SD/ - SD/ - RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUM BAI, DATED: 07.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . JAYANTILAL C. JAIN ITA NO.5488/MUM./2015 4 TRUE COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI