ACIT-17(2), MUMBAI V. SHRI KISHORE VITHALDAS, MUMBAI

ITA 6285/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3130 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2006-2007
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO S . 6285 /MUM/20 1 7 & 6286/MUM/2017 ( / ASSESSMENT YEAR S : 2006 - 07 & 200 7 - 08 ) ACIT - 17(2) ROOM NO.134A, AAYAKAR B HAVAN, M. K. ROAD, MUMBAI - 400020 . / VS. SHRI KISHORE VITHALDAS IVORINE BUILDING, 1 ST FLOOR, FLAT NO.3, 154, M.K. ROAD, CHURCHGATE, MUMBAI - 400020 . ./ ./ PAN/GIR NO. : AABPG0699N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 25 / 11 / 201 9 / DATE OF PRONOUNCEMENT : 27 / 11 / 2019 / O R D E R PER BENCH : THE REVENUE HAS FILED THE ABOVE MENTIONED APPEAL S AGAINST THE ORDER DATED 16 . 0 6 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 28 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y S . 2006 - 07 & 200 7 - 0 8 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDE R TO BE DELETED . ITA. NO.6285/M/2017 2 . THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16.06.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 28 , REVENUE BY : SHRI B. SRINIVAS / S. MICHAEL JERALD (DR) APPEAL BY: SHRI POOJAN MEHTA (AR) ITA. NO S . 6285 & 6286 /M/201 7 A.Y. 2006 - 07 & 2007 - 08 2 MUMBAI [HEREINAFTER REFERRED T O AS THE CIT(A)] RELEVANT TO THE A.Y S . 2006 - 07 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDER TO BE DELETED . 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A ) JUSTIFIED IN DELETING PENALTY LEVIED U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME MERELY STATING THAT LIMB WAS NOT CLEAR FOR WHICH PENALTY WAS LEVIED INSTEAD OF ADJUDICATING ON MERITS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS CORRECT IN HOLDING THAT LIMB/ESACT CHARGE WAS NOT CLEAR FOR WHICH PENALIZED WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD NEVER RAISED THIS QUERY BEFORE THE AO. 3. THE APPELLANT PRAYS THAT THE ORDER FOR THE AO SHOULD BE RESTORED AND ORDER OF THE CIT(A) SHOULD BE SET ASIDE. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. ' 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 31 . 10 .200 6 DECLARING TOTAL INC OME TO THE TUNE OF RS.93,14,831/ - RELEVANT TO THE A.Y. 2006 - 07 . THE ASSESSMENT OF THE ASSESSEE WAS REOPENED UPON INFORMATION RECEIVED FROM THE DDIT(INV.), UNIT - III (3), MUMBAI ON 19.02.2 013 IN WHICH IT WAS CONVEYED THAT THE APPELLANT ALONG WITH HIS FAMILY MEMBERS WAS HOLDING BANK ACCOUNT WITH HONG KONG - SHANGAI BANK CORPORATION (HSBC), GENEVA WHICH WAS NOT DISCLOSED THE RETURN OF INCOME. ON THE BASIS OF THE SAID INFORMATION, THE ASSESSMENT OF THE ASSESSEE WAS REOPENED FOR THE A.Y. 2006 - 07 & 2007 - 08. THEREAFTER, THE ASSESSMENT ITA. NO S . 6285 & 6286 /M/201 7 A.Y. 2006 - 07 & 2007 - 08 3 OF THE ASSESSEE WAS COMPLETED AFTER ASSESSING THE TOTAL INCOME IN SUM OF RS. 14,75,59,256/ - FOR THE A.Y. 2006 - 07 AS WELL AS INCOME OF R S. 3,15,82,311/ - FOR THE A.Y. 2007 - 08. THEREAFTER, THE PENALTY PROCEEDING WAS INITIATED BY ISSUANCE OF NOTICE AND AFTER THE REPLY OF THE ASSESSEE, THE PENALTY IN SUM OF RS.4,96,68,446/ - WAS LEVIED. FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DELETED THE PENALTY, T HEREFORE , THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . WE HAVE HEARD ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE CIT(A) HAS DELETED THE PENALTY ON THE BASIS OF DEFECTIVE NOTICE. THE AO N OWHERE TICK OFF ANY LIMB TO LEVY THE PENALTY. THE CIT(A) HAS PLACED RELIANCE UPON THE DECISION OF THE HONBLE ITAT IN THE CASE OF MEHERJEE CASSINATH HOLDINGS P. LTD. VS. ACIT, CIRCLE - 4(2) AND CIT - 11 VS. SAMSON PERINCHERY AND THE ORDER OF THE ITAT, MUMBAI B ENCH IN ITA. NO.2555/M/2012 VIDE ORDER DATED 28.04.2017 . THE ABOVE MENTIONED DECISIONS HAVE DISCUSSED THE LATEST LAW SETTLED BY THE HONBLE HIGH COURT OF BOMBAY AS WELL AS APEX COURT. SO WE NO W HERE FOUND ANY ILLEGALITY AND INFIRMITY IN THE ORDER PASSED BY THE CIT(A) IN QUESTION. AT THE TIME OF ARGUMENTS, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS FILED THE COPY OF THE ORDER DATED 16.10.2019 PASSED BY THE HONBLE ITAT IN THE ASSESSEES OWN CASE IN ITA. NO. 7397 / 2016 FOR THE A.Y.2007 - 08 AND ITA. NO.5661 /M/2017 FOR THE A.Y. 2006 - 07 IN WHICH THE QUANTUM HAS BEEN ORDER TO BE DELETED . ITA. NO S . 6285 & 6286 /M/201 7 A.Y. 2006 - 07 & 2007 - 08 4 SINCE THE QUANTUM HAS BEEN ORDERED TO BE DELETED, THEREFORE, PENALTY HAS NO LEG TO STAND. THEREFORE , TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES MENTIONED ABOVE, WE AFFIRM THE FINDING OF THE CIT(A) AND DISMISSED THE APPEAL OF THE REVENUE. ITA. NO. 6286/M/2017 6 . THE FACTS OF THE PRESENT CASE ARE QUITE SIMILAR TO THE FACT OF THE CASE AS NARRATED ABOVE WHILE DECIDING THE ITA. NO.6285 /M/201 7 , THEREFORE, THERE IS NO NEED TO REPEAT T HE SAME. HOWEVER, THE FIGURE IS DIFFERENT. THE MATTER OF CONTROVERSY IS ALSO THE SAME. THE FINDING GIVEN ABOVE WHILE DECIDING THE APPEAL OF THE ASSESSEE BEARING ITA. NO.6285 /M/201 7 IS QUITE APPLICABLE TO THE FACTS OF THE PRESENT CASE AS MUTATIS MUTANDIS. A CCORDINGLY, APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE DISMISSED . 7 . IN THE RESULT, THE APPEAL S FILED BY THE REVENUE IS HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 27 /11 / 2019 . SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 27 /11 /2019 V IJAY PAL SINGH/SR. PS ITA. NO S . 6285 & 6286 /M/201 7 A.Y. 2006 - 07 & 2007 - 08 5 / 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