JITENDRA M DOSHI, MUMBAI V. ASST CIT CEN CIR 9, MUMBAI

ITA 6249/MUM/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3597 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 04-07-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 08-10-2014
• Court: TRIBUNAL
• Assessee Lawyers: V H VASANI; R H VASANI
• Keywords: Peak credit
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANJAY GARG , JM ./ ITA NO. 6246 TO 6250 / MUM/20 1 4 ( / ASSESSMENT YEAR S : 200 2 - 03 T O 2006 - 07 ) SHRI JITENDRA M. DOSHI, 401/403, 4 TH FLOOR, EXPRESS TOWER, OPP. DIAMOND CINEMA, L.T.ROAD, BORIVALI (W) , MUMBAI - 400092 VS. ACIT,CC - 9, MUMBAI ./ ./ PAN/GIR NO. : A ABPD 9971 A ( / APPELLANT ) .. ( / RESPONDEN T ) /AS SESSEE BY : SHRI V.H.VASANI & R.H.VASANI /REVENUE BY : SHRI JEEVAN LAL LAVIDIYA / DATE OF HEARING : 04 /0 7 /2016 / DATE OF PRONOUNCEMENT 05/07 /201 6 / O R D E R PER BENCH : TH ESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI, FOR THE ASSESSMENT YEAR S 2002 - 03 TO 2006 - 07, IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE I.T.ACT. 2. SINCE SIMILAR ISSUE S ARE INVOLVED IN ALL THE YEAR UNDER CONSIDERATION, WHEREIN PENALTY U/S.271(1)(C) HAS BEEN LEVIED FOR THE SIMILAR REASON , THEREFORE, ALL THE APPEALS ARE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. 3. COMMON ISSUES IN ALL THE YEARS RELATE TO IMPOSITION OF PENALTY U/S.271(1)(C) WITH RESPECT TO THE PEAK CREDIT DETERMINED BY THE AO. THE ITA NO S . 6246 - 6250 /1 4 2 AO HAS LEVIED PENALTY EQUAL TO 200% OF THE TAX SOUGHT TO BE EVADED ON THE ASSESSED INCOME. 4. AT THE OUTSET, LD. AR PLACED ON RECORD ORDER OF THE COORDINATE BENCH IN ASSES SEES OWN CASE I.E. ITA NOS.6239/M/14 AND OTHER CONNECTED APPEALS, ORDER DATED 16 - 10 - 2015, WHEREIN UNDER SIMILAR FACTS AND CIRCUMSTANCES PENALTY WAS REDUCED TO 100% OF TAX SOUGHT TO BE EVADED. THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS UNDER : - 18. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE DECISION OF THE TRIBUNAL IN THE FIRST ROUND OF THE PROCEEDINGS DATED 29.8.2012 (SUPRA), AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE SAID O RDER OF THE TRIBUNAL (SUPRA), WHEREIN IT IS CLEARLY MENTIONED THAT THE AO IS ONLY REQUIRED TO FOLLOW THE DIRECTIONS OF THE ITAT FOR COMPUTATION OF THE AMOUNT OF ADDITIONS AND THE RESPECTIVE ASSESSMENTS WERE NOT SET ASIDE. THEREFORE, IN THIS REGARD WE AGREE WITH THE VIEW TAKEN BY THE CIT (A) WHILE UPHOLDING THE PENALTY ORDERS PASSED BY THE AO U/S 271(1)(C) OF THE ACT IN RESPECT OF ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. ACCORDINGLY, THE DECISION TAKEN BY CIT (A) VIDE PARAS 5.6 AND 5.7 OF HIS ORDER IS F AIR AND REASONABLE. HOWEVER, AS CONTENDED BY THE LD COUNSEL FOR THE ASSESSEE THE PENALTY LEVIED BY THE AO @ 200% OF THE TAX TO BE EVADED BY REASON OF CONCEALMENT OF INCOME IS ON HIGHER SIDE AND THEREFORE, CONSIDERING THE FACTUAL MATRIX OF THE PRESENT CASE, WE DIRECT THE AO TO RESTRICT THE PENALTY TO 100% OF THE TAX TO BE EVADED INSTEAD OF 200% LEVIED BY HIM, WHICH IN OUR CONSIDERED OPINION WOULD MEET THE ENDS OF JUSTICE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 5. AS THE FACTS AND CI RCUMSTANCES DURING ALL THE YEARS UNDER CONSIDERATION ARE SAME, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE RESTRICT THE PENALTY TO THE EXTENT OF 100% OF TAX ITA NO S . 6246 - 6250 /1 4 3 SOUGHT TO BE EVADED IN PLACE OF 200% LEVIED BY AO . WE DIRECT ACCORD INGLY. 6. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 05/07 / 201 6 . SD/ - ( SANJAY GARG ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 05/07 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//