WAMAN HARI PETHE, MUMBAI V. CIT(A) 26, MUMBAI

ITA 6900/MUM/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1415 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 14-12-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , , , BEFORE SHRI RAJENDRA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.6900/MUM/2010 ( / ASSESSMENT YEAR: 2005-06) WAMAN HARI PETHE SONS 110, VIKAS PARADISE, L.B.S.ROAD, MULUND (W), MUMBAI - 400080 / VS. CIT(A) 26 INCOME TAX OFFICE, MAHALAXMI, MUMBAI ./ ./ PAN/GIR NO. : AAAFW4587G ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 14.12.2016 /DATE OF PRONOUNCEMENT: 14.12.2016 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16.08.2010 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)- 26, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)]RELEVANT TO THE ASSESSMENT YEAR 2005-06 WHEREIN THE PENALTY HAS BEEN INVOKED BY THE CIT(A). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- ASSESSEE BY: MS. UMA MAHADEOKAR REVENUE BY: MS. ANUPAMA SINGLA ITA NO.6900/MUM/10 A.Y.2005-06 2 1. THE LEARNED CIT(A) FAILED TO GIVE SPECIFIC NOTICE FOR THE PROPOSED ADDITION FOR ENHANCEMENT OF INCOME. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE DISPUTED ADDITIONS (DEPOSITS FROM CUSTOMERS) COMPRISED NOT ONLY DEPOSITS FOR THE CURRENT A.Y.2005-06 BUT ALSO EARLIER YEARS AS MENTIONED IN SUBMISSIONS MADE BEFORE HIM. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT MOST OF THE DEPOSITS HAVE BEEN ALREADY ADJUSTED SUBSEQUENTLY AND INCLUDED IN SALES ON EXECUTION OF THE ORDERS. 4. THE ORDER PASS BY THE CIT(A) IS WITHOUT JURISDICTION AND BAD IN LAW. 5. THE LEARNED CIT(A) ERRED IN LEVYING PENALTY OF RS.22,42,351/- U/S.271(1)(C) OF THE I.T.ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS FOUND THAT APPELLANT HAD SHOWN ADVANCE TO THE TUNE OF RS.61,27,898/- IN THE NAME OF VARIOUS CUSTOMERS, WHICH WERE NOT PROVED AS GENUINE AND VERIFIABLE ONE. THEREAFTER, THE NOTICE WAS GIVEN TO THE ASSESSEE BUT THE ASSESSEE FAILED TO JUSTIFY THE CLAIM, HENCE THE PROCEEDING U/S.271(1)(C) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) WAS INITIATED. SHOW CAUSE NOTICE DATED 08.06.2010 WAS GIVEN TO THE ASSESSEE AND THE ASSESSEE ALSO FILED THE REPLY FOR THE SAME. CONSIDERING THE REPLY OF THE ASSESSEE, THE APPELLATE AUTHORITY LEVIED THE PENALTY TO THE TUNE OF RS.22,42,351/- U/S.271(1)(C) OF THE ACT. FEELING AGGRIEVED THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. AT THE VERY OUTSET THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE QUANTUM OF THE RELEVANT ASSESSMENT YEAR I.E. 2005-06 ITA NO.6900/MUM/10 A.Y.2005-06 3 HAS ALREADY BEEN SET ASIDE BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL, MUMBAI GBENCH IN THE ASSESSEES OWN CASE IN ITA NO.5152/MUM/2010 BY VIRTUE OF ORDER DATED 07.01.2016, THEREFORE, IN THE SAID CIRCUMSTANCES THE PENALTY IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW. COPY OF THE ORDER IN ITA NO.5152/MUM/2010 DATED 07.01.2016 IS ON THE FILE AND PERUSED WHICH SPEAKS THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) HAS BEEN ORDERED TO BE SET ASIDE. IN VIEW OF THE SAID CIRCUMSTANCES WHEN THE VERY BASE TO LEVY THE PENALTY HAS BEEN ORDERED TO BE SET ASIDE, THEREFORE IN VIEW OF THE CIRCUMSTANCES THE PENALTY IS ALSO NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND SET ASIDE THE ORDER DATED 16.08.2010 IN QUESTION AND DELETE THE PENALTY. 5. IN RESULT THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DECEMBER , 2016. SD/- SD/- (RAJENDRA) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 14 TH DECEMBER, 2016 MP ITA NO.6900/MUM/10 A.Y.2005-06 4 / 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