ACIT CEN CIR 9, MUMBAI V. GTL LTD, NAVI MUMBAI

ITA 6882/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3907 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2016
• Appeal Filed By: Department
• Bench Allotted: G
• Next Hearing Date: 18-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 27-11-2013
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Assessee Lawyers: MANISH V SHAH
• Section: 115JB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO.6882/M/2013 (ASSESSMENT YEAR: 2004 - 2005 ) ACIT - CENTRAL CIRCLE - 9, R.NO.806, 8 TH FLOOR, OLD CGO BLDG., M.K. ROAD, MUMBAI 400 020. / VS. GTL LTD., GLOBAL VISION, ES - II, MIDC TTC INDL. AREA, MAHAPE, NAVI MUMBAI - 400710. ./ PAN : AAACG3742L ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ASGHAR ZAIN, VP, DR / RESPONDENT BY : SHRI MANISH V. SHAH / DATE OF HEARING : 18.2.2016 / DATE OF PRONOUNCEMENT : 18.2.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 27.11.2013 IS AGAINST THE ORDER OF THE CIT (A) - 37, MUMBAI DATED 13.9.2013 FOR THE ASSESSMENT YEAR 2004 - 05. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. THE ORDER OF THE CIT (A) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) WAS JUSTIFIED IN STATING THAT PENALTY IS LEVY ABLE ON THE BASIS OF INCOME ASSESSED U/S 115JB, DESPITE THE FACT THAT THERE IS NO SUCH PROVISIONS IN INCOME TAX ACT. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) WAS JUSTIFIED IN ALLOWING RELIEF TO THE ASSESSEE IGNORING THE EXPLANATION 4 OF CLAUSE (III) OF SECTION 271(1)(C) OF THE A CT WHICH CLEARLY STATED THAT TAX WOULD HAVE BEEN CHARGEABLE ON THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED OR INACCURATE PARTICULARS HAVE BEEN FURNISHED HAD SUCH INCOME BEEN THE TOTAL INCOME. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD CIT (A) WAS RIGHT IN RELYING ON THE DECISIONS OF BSEL INFRASTRUCTURE REALTY LTD VS. ACIT AND CIT VS. NALWA SONS INVESTMENTS (2010) 327 ITR 543 (DEL) WITHOUT APPRECIATING THE FACT THAT THE FACTS AND CIRCUMSTANCES OF THE AB OVE CASES ARE ENTIRELY DIFFERENT FROM THE FACTS OF THE ASSESSEE. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) WAS RIGHT IN HOLDING THAT TAX SOUGHT TO BE EVADED TO BE COMPUTED FOR THE PURPOSE OF QUANTIFYING THE P ENALTY IS TO BE COMPUTED ON THE BASIS OF INCOME ASSESSED U / S 115 JB WHERE THERE ARE NO SUCH PROVISIONS OF THE ACT. 2 2. AT THE OUTSET, LD REPRESENTATIVES OF BOTH THE PARTIES INFORMED THAT THE REVENUE FILED THIS APPEAL IN RESPECT OF THE PENALTY LEVIED U/S 2 71(1)(C) DELETED BY THE CIT (A). THE PENALTY DE LETED RELATES TO THE DIFFERENCE OF ADDITIONS MADE UNDER NORMAL PROVISIONS AND THE MAT PROVISIONS. NO PENALTY IS LEVYABLE IN RESPECT OF THE NORMAL ADDITIONS WHEN THE ASSESSMENTS WERE COMPLETED EVENTUALLY UNDE R MAT PROVISIONS. IN THIS REGARD, T HE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. NALWA SONS INVESTMENTS LTD [2012] 21 TAXMANN.COM 184 (SC), DATED 4.5.2012 IS RELIED ON BY THE LD COUNSEL WHICH IS RELEVANT FOR THE PROPOSITION THAT WHEN AS SESSMENT WAS MADE ON INCOME COMPUTED UNDER SECTION 115JB AND TAX HAD BEEN PAID ON INCOME SO COMPUTED, PENALTY U/S 271(1)(C) WOULD NOT BE IMPOSED WITH REFERENCE TO ADDITIONS THAT WOULD HAVE BEEN MADE TAKING INTO ACCOUNT CONCEALMENT MADE BY ASSESSEE WHILE MA KING ASSESSMENT UNDER NORMAL PROCEDURE. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF NALWA SONS INVESTMENTS LTD (SUPRA). WE HAVE ALSO PERUS ED THE CBDT CIRCULAR NO.25/2015, DATED 31.12.2015 AND PARA 7 OF THE SAID BOARDS CIRCULAR IS RELEVANT IN THIS REGARD. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAID PARA 7 IS EXTRACTED AS FOLLOWS: - 7. ACCORDINGLY, THE BOARD HEREBY DIRECTS THAT NO APPEALS MAY HENCEFORTH BE FILED O THIS GROUND AND APPEALS ALREADY FILED, IF ANY, ON THIS ISSUE BEFORE VARIOUS COURTS / TRIBUNALS MAY BE WITHDRAWN / NOT PRESSED UPON. THIS MAY BE BROUGHT TO THE NOTICE OF ALL CONCERNED. 4. CONSIDERING THE FACT THAT THE PE NALTY, IN RESPECT OF WHICH CIT (A) GAVE RELIEF, IS NOT ATTRIBUTABLE TO THE ADDITION MADE UNDER MAT PROVISIONS, THE GROUNDS RAISED BY THE REVENUE SHOULD BE DISMISSED. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER COMPLETION OF HEARING ON 18 TH FEBRUARY, 2016. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 8 .2.2016 . . ./ OKK , SR. PS 3 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI