SUMITA SYNTHETICS LTD, MUMBAI V. ITO 4(3)4), MUMBAI

ITA 675/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1838 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 01-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHATURBHUJ DAS
• Assessee Lawyers: VIPUL B JOSHI
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , !'# , $ % BEFORE SHRI I.P. BANSAL, JM AND SHRI N.K. BILLA IYA, AM ./I.T.A. NO. 675/MUM/2012 ( & & & & / ASSESSMENT YEAR : 2004-05 M/S. SUMITA SYNTHETICS LTD., 609, KAKAD MARKET, 306, KALABADEVI ROAD, MUMBAI-400 002 / VS. THE ITO, 4(3)(4), AAYKAR BHAVAN, MUMBAI-400 020 ' $ ./ () ./PAN/GIR NO. AABCS 4453P ( '* /APPELLANT ) .. ( +,'* / RESPONDENT ) '* - / APPELLANT BY: SHRI VIPUL B. JOSHI +,'* . - / RESPONDENT BY SHRI CHATURBHUJ DAS . /0$ / DATE OF HEARING : 30.01.2013 12& . /0$ /DATE OF PRONOUNCEMENT : 30.1.2013 3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-8, MUMBAI DT.30.12.2011 PERTAINING TO A.Y. 2 004-05. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 3,32,010/- LEVIED BY THE AO UNDER THE PROVISIONS OF SEC. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE PENALTY LIE IN THE ASSESSMENT ORDER DT. 12.12.2006. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS, THE ASSESSING ITA NO.675/MUM/2012 2 OFFICER FOUND CERTAIN CREDITS IN THE BANK ACCOUNTS AND SOUGHT EXPLANATION FROM THE ASSESSEE REGARDING THE SAME. THE ASSESSEE CLAIMED THAT THE SAID CREDIT BELONGS TO THE SALES MADE BY THE ASSESSEE. THE ASSESSEE WAS ASKED TO SUBMIT NAME AND ADDRESS OF THE PARTIES TO WHOM S ALES HAVE BEEN MADE. 4. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE AS SESSEE, THE AO TREATED THE SUM OF RS. 4,74,433 AND RS. 4,51,026/- RECEIVED FROM M/S. A.S. TEXTILES AND M/S MATA TEXTILES INDUSTRIES RES PECTIVELY AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. THE PE NALTY HAS BEEN LEVIED ON THESE ADDITIONS. 5. THE LD. CIT(A) CONFIRMED THE PENALTY HOLDING THA T HIS PREDECESSOR HAS CONFIRMED THE ADDITION VIDE ITS ORDER NO. CIT(A ) XIV/ITO 4(3)(1)/IT-460/06-07 DT./ 12.10.2007. 6. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENT ION TO THE DECISION OF THE TRIBUNAL IN ITA NO. 6994/MUM/2007 AND POINTE D OUT THAT THE ADDITIONS MADE U/S. 68 ON ACCOUNT OF SALE OF TEXTUR ISED YARN TO TWO PARTIES TOTALING TO RS. 9,25,459/- HAVE BEEN RESTOR ED BACK TO THE FILES OF THE AO FOR RECONSIDERATION. THE LD. COUNSEL FURTHE R SUBMITTED THAT THE VERY BASIS FOR THE LEVY OF PENALTY NOW DO NOT EXIST S. 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING FACTS ON RECORD. 8. WE HAVE CONSIDERED THE SUBMISSIONS AND PERUSED T HE ORDERS OF THE LOWER AUTHORITIES. WE HAVE ALSO CONSIDERED THE ORD ER OF THE TRIBUNAL IN ITA NO. 6994/M/07 (SUPRA). WE FIND THAT THE TRIBUN AL AT PARA-21 HAS HELD AS UNDER: AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND T HAT THE ASSESSMENT ORDER HAS BEEN PASSED ON 12.12.2006 AND, ITA NO.675/MUM/2012 3 THEREFORE, OBVIOUSLY THE SUBMISSIONS MADE ON 11.12. 2006 COULD NOT HAVE BEEN CONSIDERED BY THE AO. THEREFOR E, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF AO FOR RECONSI DERATION OF THE ISSUE AFTER PROVIDING ADEQUATE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL (SUPRA), WE RESTORE THIS ISSUE BACK TO THE FILES OF THE AO FOR RECONSIDERATION FOR THE LEVY OF PENALTY AS PER THE DECISION TAKEN IN THE QU ANTUM PROCEEDINGS. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 /5 4/ . 6 7. 89: ;/ / . (/ <' ORDER PRONOUNCED IN THE OPEN COURT ON 30/1/2013 3 . 2& $ 6 =5 30.1.2013 2 . > SD/- SD/- ( I.P. BANSAL) (N.K. BIL LAIYA) /JUDICIAL MEMBER $ / ACCOUNTANT MEMBER MUMBAI; = DATED 30.1.2013 . . ./ RJ , SR. PS ITA NO.675/MUM/2012 4 3 . +/ ? &/ / COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. @ ( ) / THE CIT(A)- 4. @ / CIT 5. A> +/ , , / DR, ITAT, MUMBAI 6. >B C / GUARD FILE. 3 / BY ORDER, , / +/ //TRUE COPY// 8 / < ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI