UNI TEX PRODUCTS P.LTD, MUMBAI V. DCIT 2(3), MUMBAI

ITA 6098/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3603 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 23-04-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KANOJIA
• Assessee Lawyers: Y P TRIVEDI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI . . , / BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND . , SHRI D.KARUNAKAR RAO, ACCOUNTANT MEMBER . / ITA NO.6098/MUM/2011 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2004-05 UNI TEX PRODUCTS PVT. LTD., SAPT BUILDING, J.N.HEREDIA MARG, BALLARD ESTATE, MUMBAI - 400 001. ! ! ! ! / VS. THE DY. COMMISSIONER OF INCOME-TAX, CIR. 2(3), ROOM NO.555, AAYKAR BHAVAN, M.K.ROAD, MUMBAI - 400 020; # ./ $% ./ PAN/GIR NO. : AAACU0760G ( #& / APPELLANT ) .. ( '(#& / RESPONDENT ) #& ) / APPELLANT BY: SHRI Y.P.TRIVEDI & MS.USHA DALAL '(#& * ) / RESPONDENT BY : SHRI MANISH KANOJIA ! * + / DATE OF HEARING : 27/05/2013 ,-' * + / DATE OF PRONOUNCEMENT : 27/05/2013 . / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-6 MUMBAI DATED 22/6/2011 FOR A SSESSMENT YEAR 2004-05 THE GROUNDS OF APPEAL READ AS UNDER: 1. THE LEARNED CIT ( A ) ERRED IN CONFIRMING PENAL TY ON INCOME OF ADDITION OF RS. 10,80,000/- LEVIED BY AO U/S. 271(1 )(C) OF THE INCOME TAX ACT, 1961, ON ACCOUNT OF AMENITIES AMOUNT, WHICH WAS NEV ER RECEIVED BY THE APPELLANT. . / ITA NO.6098/MUM/2011 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2004-05 2 2. THE LEARNED CIT ( A) OUGHT TO HAVE APPRECIATED T HAT THE APPELLANT DID NOT FILE ANY INACCURATE PARTICULARS NOR CONCEALED ANY P ARTICULARS OF INCOME IN RESPECT OF THE SAID SUM OF RS. 10,80,000 /- AND HEN CE, PENALTY FOR CONCEALMENT OF INCOME FOR THE SAID SUM WAS NOT WARR ANTED. 3. THE LEARNED CIT ( A ) FAILED TO APPRECIATE THAT THE PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS THAN THE QUANTUM PROCEE DINGS AND EVEN IF THE ADDITION OF RS.10,80,000/- WAS CONFIRMED BY CIT ( A ) WOULD NOT AUTOMATICALLY TENTAMOUNT TO CONCEALMENT OF INCOME. 4. THE LEARNED CIT ( A ) FAILED TO APPRECIATE THAT THE APPELLANT CONTESTED THE SAID ADDITION OF INCOME OF RS.10,80,000 /- BEFO RE ITAT AND ITAT INADVERTENTLY OMITTED TO GIVE FINDING ON THE SAID I SSUE THOUGH IT WAS ARGUED BY THE LEARNED SENIOR COUNSEL OF THE APPELLA NT THAT THE APPELLANT DID NOT RECEIVE ANY AMOUNT BY WAY OF RENT OR BY WAY OF PROVIDING AMENITIES, AND HENCE, NO ADDITION COULD HAVE BEEN M ADE BY RELYING ON THE JUDGEMENT OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF CIT V. A. RAMON & CO. REPORTED IN 67 ITR PG. 11. 5. THE LEARNED CIT (A ) ERRED IN HOLDING THAT SINCE ITAT SILENT ON THE ISSUE, PENALTY FOR CONCEALMENT OF ISSUE FROM AMENITIES AT RS. 10,80,000/- HAS TO BE CONFIRMED. 2. THE CONCEALMENT PENALTY OF RS.19,55,672/- WAS LE VIED IN RESPECT OF TWO ADDITIONS TOTALLING TO RS.54,51,352/-, OUT OF WHICH ADDITION OF RS.43,71,352/- WAS EARLIER DELETED BY THE TRIBUNAL AND TO THAT EXT ENT THE CONCEALMENT PENALTY WAS DELETED BY LD. CIT(A). AS THE ORDER OF TRIBUN AL WAS SILENT ON THE ADDITION OF RS.10,80,000/-, WHICH WAS ADDITION MADE ON ACCOU NT OF AMENITIES, LD. CIT(A) HAS UPHELD THE PENALTY. AGGRIEVED ASSESSEE HAS FILED AFOREMENTIONED APPEAL. 3. AT THE OUTSET IT WAS POINTED OUT BY LD. AR THAT AS TRIBUNAL DID NOT ADJUDICATE UPON THE ADDITION OF RS.10,80,000/- AN APPLICATION UNDER SECTION 254(2) WAS FILED AND THE ORDER WAS RECALLED FOR ADJ UDICATION OF THIS ADDITION. THE TRIBUNAL HAS CONSIDERED THE ISSUE REGARDING THE IMPUGNED ADDITION VIDE ITS ORDER DATED 27/2/2013 IN ITA NO.2487/MUM/2009 AND T HE IMPUGNED ADDITION HAS BEEN DELETED. THUS, IT WAS PLEADED BY LD. AR T HAT WHEN ADDITION ITSELF HAS BEEN DELETED THEN PENALTY DOES NOT SURVIVE. A COPY OF THE SAID ORDER WAS PLACED ON OUR RECORD AND A COPY WAS ALSO GIVEN TO L D. DR. . / ITA NO.6098/MUM/2011 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2004-05 3 4. LD. D.R DID NOT OBJECT TO THE SUBMISSIONS OF THE ASSESSEE THAT IMPUGNED ADDITION HAS BEEN DELETED BY THE AFOREMENTIONED OR DER. 5. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, AS ADDITION ITSELF HAS BEEN DELETED, WE SEE NO JUSTIFICATION I N THE LEVY OF CONCEALMENT PENALTY IN RESPECT OF IMPUGNED ADDITION OF RS.10,8 0,000/-. THE SAME IS ORDERED TO BE DELETED AND THE APPEAL FILED BY THE A SSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/05/2013 . * ,-' / 0!1 27/05/2013 - * 2 3 SD/- SD/- ( . / D.KARUNAKAR RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0! DATED 27/05/2013 . . . . * ** * '+45 '+45 '+45 '+45 65'+ 65'+ 65'+ 65'+ / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '(#& / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 582 '+! , , / DR, ITAT, MUMBAI 6. 2 9 / GUARD FILE. .! .! .! .! / BY ORDER, (5+ '+ //TRUE COPY// : :: : / ; ; ; ; $ $ $ $ (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ! . ./ VM , SR. PS