ACIT-19(3), MUMBAI V. SHRI YOGESH J. MEHTA, MUMBAI

ITA 63/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8050 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 27-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OSHANG B IRANI
• Keywords: Loose papers
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘G‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA No.63/Mum/2021 (Asse ssment Year :2004-05) Asstt. Commissioner of Income Tax-19(3), Mumbai 2 nd Floor, Room No.206 Matru Mandir, Tardeo Road, Mumbai – 400 007 Vs. Shri Yogesh J Mehta Flt No.123, 3 rd Floor Samrat Ashok No.3 R R Thakkar Marg Malabar Hill Mumbai – 400 006 PAN/GIR No.DVRPK6774G (Appellant) .. (Respondent) Revenue by Shri Oshang B Irani Assessee by None Date of Hearing 24/02/2022 Date of Pronouncement 24/02/2022 आदेश / O R D E R PER M. BALAGANESH (A.M): This appeal in ITA No.63/Mum/2021 for A.Y.2004-05 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-30, Mumbai in appeal No.CIT(A)-30/19(3)/11493/14-15 dated 21/04/2014 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’). 2. The only issue to be decided in this case is as to whether the ld. CIT(A) was justified in deleting the concealment penalty u/s.271(1)(c) of ITA No.63/Mum/2021 Shri. Yogesh J Mehta 2 the Act on the ground that quantum has been deleted by the Tribunal in assessee’s own case. 3. None appeared on behalf of the assessee. We have heard the ld. DR and perused the materials available on record. We find that the ld. CIT(A) had deleted the penalty u/s.271(1)(c) of the Act on the ground that quantum addition has been deleted by this Tribunal in ITA No.2756/Mum/2013 dated 21/03/2017. The relevant observations of the order of the ld. CIT(A) are reproduced below:- “5. I have carefully considered the facts relating to the grounds raised in appeal, as they emerge from the impugned penalty 'order and the submissions made during these proceedings. On perusal of the order of the Hon'ble ITAT w'.r.t to the addition made 'in the assessment proceedings, it is seen that the said addition has been deleted by the Tribunal observing as follows: "6. Before us, the learned Counsel for the assessee filed a copy 'of Tribunal's order in the case of Layer Exports'-(P) Ltd, vs. ACIT In 1TA No. 1927/Mum/2012 for the AY 2004-05 and others dated 31-10-2016, wherein Tribunal after considering the seized documents found from the M/s Bharat Shah Group of Cases had dealt with the issue and held, that the loose sheet found is dumped document having no evidentiary value, by observing as under: "38. In view of the aforesaid judgments, it is submitted that since the impugned seized papers are undated, have no acceptable narration, and do -not bear the signature of the assessee or 'any other party, they are 'in the nature of dumb documents having no evidentiary value and cannot be taken as a sole basis for' determination of undisclosed income of the assessee. When dumb documents like the present loose sheets of papers are recovered and the Revenue wants to make use of it, the onus rests on the Revenue to collect cogent -evidence to corroborate the noting therein. The Revenue has failed to corroborate the noting by bringing some cogent material on record to prove conclusively that the noting in the seized papers reveal the unaccounted on-money receipts of the assessee. Further, no circumstantial evidence in the form of any unaccounted cash, jewellery or investments outside the books of account was found in course of search in the case of assessee. Thus, the impugned addition was 'made by the AO on grossly inadequate material or rather no material at all and as such, deserves to be deleted. Hence, we are of the view that an assessment earned out in pursuance of search, no addition can be made simply on' the basis' of. uncorroborated noting in loose papers found during search because-'the addition on account of alleged on- money receipts made ITA No.63/Mum/2021 Shri. Yogesh J Mehta 3 simply on -the basis of uncorroborated noting and scribbling on loose sheets of papers made by some unidentified person and having no evidentiary value/ is unsustainable and bad-in-law. As such, the same is deleted. This issue-of the assessee's appeal is allowed and that of the Revenue is dismissed. 7 When this was confronted to learned Sr. DR , she merely relied on the assessment order and the order of CIT(A). We find that the issue is squarely covered in favour of assessee and against 'the Revenue by Tribunal's decision in the case of layer Exports (P) Ltd. (supra), respectfully following the same we allow the appeal of the assessee as' the facts and circumstances are exactly identical.” Accordingly, considering that the addition for A.Y.2004-05 on which the penalty was based has been deleted by the ITAT, the penalty levied by the A.O. is hereby deleted and the appeal is allowed. 3.1. Since the quantum is deleted by the Tribunal, the concealment penalty u/s. 271(1)(c) of the Act would have no legs to stand. Hence, we do not find any infirmity in the order of the ld. CIT(A). Accordingly, the ground raised by the Revenue are dismissed. 4. In the result, appeal of the Revenue is dismissed. Order pronounced in open Court on 24/02/2022. Sd/- (KULDIP SINGH) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 24/02/2022 KARUNA, sr.ps ITA No.63/Mum/2021 Shri. Yogesh J Mehta 4 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//