RATTAN PROPERTIES AND PROJECTS PVT. LTD., MUMBAI V. ACIT, - CIRCLE-1 , KALYAN

ITA 6174/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1607 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 30-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANPREET SINGH DUGGAL
• Keywords: Condonation of delay; Bonafide mistake
• Section: 201; 13; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 6174/MUM/2018 ASSESSMENT Y EAR: 2012 - 13 RATTAN PROPERTIES AND PROJECTS PVT. LTD., 8 - 9, RATTANDEEP APARTMENT, NEAR SAPNA GARD EN, HARI KIRTAN DARBAR ROAD, ULHASNAGAR - 421003 PAN: AADCR8661A VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALYAN (WEST) - 421301 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENU E BY : SHRI MANPREET SINGH DUGGAL (DR) DATE OF HEARING: 17/11 /2020 DATE OF PRONOUNCEMENT: 23 / 11 /2020 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 04.06.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 (FOR SHORT THE CIT(A) , PUNE , FOR THE ASSESSMENT YEAR 2012 - 13 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE PENALTY ORDER PASSED U/S 271 (1 ) (C ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUND : - 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX - (A PPEALS) - 2, PUNE (HEREINAFTER REFERRED TO AS CIT (A) ERRED IN UPHOLDING THE PENALTY U/S 271 (1) (C) AMOUNTING TO RS. 6,08,945/ - LEVIED BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE A.O.) IN AN ARBITRARY MANNER ON THE BASIS OF GUESS WORK AND WITHO UT BRINGING ON RECORD ANY EVIDENCE 2 ITA NO. 617 4 / MUM/2018 ASSESSMENT YEAR: 201 2 - 1 3 THAT THE INTEREST INCOME VOLUNTARILY OFFERED WAS DETECTED/NOTICED BY THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) ORDER IS BAD IN LAW AS THE UPHOLD THE PENALTY OF RS. 6,08,945/ - U/S 271 (1) (C) WITHOUT BRINGING ON RECORD ANY MATERIAL THAT INCOME WAS NOT VOLUNTARILY OFFERED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) ERRED IN CONFIRMING THE PENALTY U/S 271 (1) (C) BY IGNORING THE FACT THAT IN THE SUCCE EDING YEAR THE PENALTY PROCEEDINGS WAS NOT INITIATED IN RESPECT OF SIMILAR VOLUNTARILY DECLARATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) OUGHT TO HAVE APPRECIATED THAT IT WAS BONAFIDE MISTAKE AND SAME WAS VOLUNTARILY OFFERED FOR TAXATION. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE DECISION QUOTED BY CIT (A) ARE NOT APPLICABLE IN PRESENT CASE. 6. THE REASONS MENTIONED IN THE ORDER ARE CONTRARY TO FACTS AND LAW. 3 . THIS CASE WAS FIXED FOR HEARI NG ON 17.11.2020. HOWEVER, WHEN THE CASE WAS CALLED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE THAT THE DIRECTOR OF THE ASSESSEE COMPANY HAS SUBMITTED AN APPLICATION DATED 16.10.20, STATING THAT THE ASSESSEE HAS OPTED TO SETTLE THE DIS PUTE UNDER VIVAD SE VISHWAS ACT, 2020, THEREFORE THESE APPEALS MAY BE KEPT IN ABEYANCE. 4 . THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE THE ASSESSEES APPLICATION. I N THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS . ACIT , THE HONBLE MADRAS HIGH COURT HAS DISMISSED THE APPEAL OF THE ASSESSEE AS WITHDRAWN IN WHICH THE COUNSEL HAD MADE THE SIMILAR SUBMISSIONS BEFORE THE HONBLE COURT. THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE AS UNDER: - 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE, ON INSTRUCTIO NS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME (VVS SCHEME FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. I. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUT ED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT 3 ITA NO. 617 4 / MUM/2018 ASSESSMENT YEAR: 201 2 - 1 3 RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BE EN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) DIS PUTED TAX HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 4 IN RESPE CT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A - C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CASE, WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULA TED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYME NT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS G IVEN LIBERTY TO RESTORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE P RAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DI VISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT 4 ITA NO. 617 4 / MUM/2018 ASSESSMENT YEAR: 201 2 - 1 3 AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 5. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUS AMY MOHAN (HUF) VS. ACIT (SUPRA) , WE DISMISS THE PRESENT APPEAL AS WITHDRAWN . HOWEVER, THE APPELLANT/ASSESSEE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL AS DISCUSSED BY THE HONBLE MADRAS HIGH COURT IN PARAGRAPH 7 OF THE JUDG MENT. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 201 2 - 201 3 IS DISMISSED. ORDER PRONOUNCED ON 23 RD NOVEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 23 / 1 1 /2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI