KNIGHT RAJ PROPERTIES P.LTD, MUMBAI V. ITO 10(1)(4), MUMBAI

ITA 6237/MUM/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7819 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 13-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 271(1)(c); 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H , MUMBAI BEFORE S HRI G. MANJUNATHA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 6237 /MUM/2017 ASSESSMENT Y EAR: 2010 - 11 M/S KNIGHT RAJ PROPERTIES PVT. LTD., KINGDOM FORMERLY W.I.T. BLDG., 1 ST FLOOR, 2 - A , DHARAVI ROAD, MAHIM (E), MUMBAI PAN: AABCK5296L VS. THE I.T.O. 10(1)(4), ROOM NO. 25 B, GROUND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TANMAY PHADKE ( A R ) REVENUE BY : SHRI MANOJ KUMAR SI NGH (D R ) DATE OF HEARING: 26 /12 /201 8 DATE OF PRONOUNCEMENT: 26 / 12 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.06.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 17 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2010 - 11 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED 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 (APPEAL S ), ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. THE LD. CIT (A) ERRED IN CONFIRMING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON ADDITION MADE U NDER SECTION 68 OF THE ACT WITHOUT APPRECIATING THAT THE APPELLANT HAS NEITHER CONCEALED ANY PARTICULARS OF INCOME NOR FURNISHED INACCURATE PARICULARS OF 2 ITA NO . 6237 / MUM/2017 ASSESSMENT YEAR: 2010 - 11 INCOME. THUS, THE LEVY OF PENALTY UNDER SECTION 271 (1)(C) OF THE ACT IS UNJUSTIFIED AND THE SAME MAY BE DELETED. 2. THE LD. CIT (A) ERRED IN CONFIRMING THE PENALTY UNDER SECTION 271 (1) (C) OF THE ACT ON THE ADDITION OF RS. 500,000/ - TREATING THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. THUS, THE LEVY OF PENALTY ON SAID GROUND IS UNJUSTIFIED AND THE SAME MAY BE DELETED. 3. THE LD. CIT (A) ERRED IN LEVYING PENALTY UNDER SECTION 271 (1)(C) OF THE ACT ON THE BASIS OF ADDITION OF RS. 8,08,800/ - TREATING THE SAME AS UNEXPLAINED CASH CR EDIT UNDER SECTION 68 OF THE ACT, WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. THUS, THE LEVY OF PENALTY ON SAID GROUND IS UNJUSTIFIED AND THE SAME MAY BE DELETED. 4. THE LD. A.O. ERRED IN LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT B Y INITIATING PENALTY PROCEEDINGS ON 19.02.2015 AFTER 1 YEAR 11 MONTHS LATER THE ITO ORDER DATED 14.03.2013 WHICH IS BAD IN LAW. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ITAT HAS REMITTED THE QUANTUM APPEAL BACK TO THE A SSESS ING OFFICER (AO) FOR DECIDING THE SAME AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCE AND SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE THE TRIBUNAL. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE QUANTUM APPEAL HAS BEEN SET ASIDE , THE IM PUGNED ORDER PASSED U/S 271 (1) (C) OF THE ACT DOES NOT SURVIVE. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THAT THE TRIBUNAL HAS REMITTED THE QUANTUM APPEAL BACK TO THE FILE OF AO FOR DECIDING THE ISSUES INVOLVED AFRES H IN ACCORDANCE WITH THE DIRECTIONS OF THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. A S POINTED OUT BY THE LD. COUNSEL FOR THE 3 ITA NO . 6237 / MUM/2017 ASSESSMENT YEAR: 2010 - 11 ASSESSEE , VIDE ORDER DATED 11.06.2018 PASSED IN THE QUANT UM APPEAL ITA NO. 3451/MUM/2014 THE COORDINATE BENCH HAS ALLOWED THE ADDITIONAL EVIDENCES PRODUCED BY THE APPELLANT/ASSESSEE AND REMITTED THE ISSUES TO THE FILE OF AO FOR DECIDING THE SAME AFRESH IN THE LIGHT OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSE SSEE BEFORE THE TRIBUNAL. THE RELEVANT PART OF THE ORDER PASSED BY THE COORDINATE BENCH IN QUANTUM APPEAL READS AS UNDER: - WE HAVE HEARD BOTH THE COUNSEL AND CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. UPON CAREFUL CONSIDERATION, WE ARE OF THE CONSIDERED OPINION THAT THESE ISSUES NEED TO BE SENT TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, THESE ISSUES ARE ALSO REMITTED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE SAME AFRESH IN LIGHT OF T HE ADDITIONAL EVIDENCES AND SUBMISSIONS BEING MADE BY THE LD. COUNSEL OF THE ASSESSEE. NEEDLESS TO ADD, THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD. 6. SINCE, THE QUANTUM APPEAL HAS BEEN SET ASIDE TO THE FILE OF AO, THE PENALTY O RDER CONFIRMED BY THE LD. CIT (A) DOES NOT SURVIVE. HENCE, WE SET ASIDE THIS APPEAL ALSO TO THE FILE OF AO FOR PASSING ORDER AFRESH, IF NEEDED, AFTER PASSING ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL . WE DISPOSE OF THIS APPEAL ACCORDINGLY. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2010 - 20 11 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DECEMBER , 2018. SD/ - SD/ - ( G. MANJUNATHA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 12 / 201 8 4 ITA NO . 6237 / MUM/2017 ASSESSMENT YEAR: 2010 - 11 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