JAI TRADING CO., MUMBAI V. ITO 21(2)(1), MUMBAI

ITA 7064/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9479 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 03-12-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 18-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL J SATHE
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA (ACCOUNTANT MEMBER) ITA NO.7064/MUM/2011: ASSESSMENT YEAR: 2003-04 ITA NO.7065/MUM/2011: ASSESSMENT YEAR: 2004-05 ITA NO.7066/MUM/2011: ASSESSMENT YEAR: 2005-06 ITA NO.7067/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7068/MUM/2011: ASSESSMENT YEAR: 2000-01 ITA NO.7069/MUM/2011: ASSESSMENT YEAR: 2002-03 ITA NO.7070/MUM/2011: ASSESSMENT YEAR: 2001-02 JAI TRADING CO,. 290, A/10, ANAND NAGAR, NEAR GTB NAGAR, SION (E), MUMBAI-28 PA NO.AABFJ 4311 N ITO 21(2)(1), MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI ANIL J SATHE RESPONDENT BY: SHRI RAKESH RANJAN DATE OF HEARING: 3 .12.2012 DATE OF PRONOUNCEMENT: 5 .12.2012 ORDER PER BENCH: THE ASSESSEE HAS FILED THESE APPEALS FOR ASSESSMEN T YEARS 2001-02 TO 2006-07 AGAINST COMMON ORDER DATED 5.7.2011 OF LD CIT(A)-3 2, MUMBAI CONFIRMING THE PENALTY U/S.271(1)(C) OF THE ACT. THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS IN BRIEF ARE THAT DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE STATE BANK O F INDIA, J.K.GRAM, THANE BRANCH HAD TAKEN A PREMISES ON RENT FROM THE ASSESSEE AND PAID RENT DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEARS UNDER CONSIDERATION AS UNDER: 2 A.Y. AMOUNT (RS.) 2000-2001 9,53,856 2001-02 27,65,069 2002-03 16,66,068 2003-04 16,66,068 2004-05 16,66,068 2005-06 16,66,068 2006-07 13,22,085 3. IT IS ALSO FOUND FROM THE BANK STATEMENT THAT TD S ON THE ABOVE AMOUNTS HAD BEEN DEDUCTED AND PAID TO THE GOVERNMENT EXCHEQUER. AO ALSO NOTICED THAT ASSESSEE HAD SOLD THREE FLATS FOR A TOTAL CONSIDERATION OF R S.30,00,000 AND NO DETAILS OF EXPENDITURE MADE ON CONSTRUCTION OF FLATS WERE GIVE N. AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE SAME SHOULD NOT BE TAXED AS BUSINESS INCOME. AO ALSO NOTICED THAT THERE ARE CREDITS APPEARING IN ACCOUNT NO.CA/053063 AND L O/300396 IN PUNJAB & MAHARASHTRA CO.OP. BANK AND ASKED THE ASSESSEE TO EXPLAIN THE S AME. IN REPLY, ASSESSEE STATED BEFORE THE AO THAT ASSESSEE FIRM HAD NO OTHER SOURC E OF INCOME EXCEPT RENT FROM SBI, THANE AND ASSESSEE HAD TAKEN LOAN FROM PUNJAB & MAH ARASHTRA CO.OP. BANK AND THE CREDITS APPEARING IN THE SAID ACCOUNTS ARE OUT OF T HE RENT REMITTED BY SBI. THE AO DID NOT ACCEPT THE CONTENTION OF ASSESSEE. SINCE THE A SSESSEE HAD NOT FILED ANY RETURNS DISCLOSING THE ABOVE RENTAL RECEIPTS, THE AO AFTER ALLOWING 30% AS STATUTORY DEDUCTIONS TREATED THE BALANCE AMOUNT AS INCOME OF THE ASSESSE E FROM HOUSE PROPERTY. THE AO ALSO LEVIED PENALTY IN RESPECT OF ALL THESE ASSESS MENT YEARS AS UNDER: A.Y. AMOUNT (RS.) 2000-2001 5,33,694 2001-02 9,55,248 2002-03 3,85,250 2003-04 11,08,741 2004-05 46,630 2005-06 4,36,548 2006-07 2,32,191 4. BEING AGGRIEVED, ASSESSEE FILED APPEALS BEFORE L D CIT(A) BUT TO NO AVAIL. HENCE, THESE APPEALS BY THE ASSESSEE. 3 5. LD AR. SUBMITTED THAT IN THE QUANTUM APPEALS, TH E TRIBUNAL BY ITS ORDER DATED 30.7.2010 IN I.T.A. NOS.2407 TO 2411/M/2009 FOR ASS ESSMENT YEARS 2001-02 TO 2005-06 AND ALSO IN I.T.A. NO.1805/M/2009 FOR ASSESSMENT YE AR 2000-2001 ORDER DATED 30.3.2011 HAS SET ASIDE CERTAIN ADDITIONS TO THE FI LE OF AO FOR HIS FRESH CONSIDERATION. LD A.R. ALSO SUBMITTED THAT SIMILAR FACTS ARE INVOL VED IN ASSESSMENT YEAR 2006-07. HOWEVER, AO HAS SUSTAINED THE SAID ADDITIONS AND TH E APPEALS ARE PENDING BEFORE LD CIT(A). HE SUBMITTED THAT SINCE QUANTUM APPEALS A RE PENDING BEFORE LD CIT(A) AGAINST THE ORDERS SO PASSED BY THE AO, THE PENALTY APPEAL S MAY BE KEPT IN ABEYANCE. HOWEVER, LD D.R. SUBMITTED THAT MATTER COULD BE RES TORED TO THE FILE OF LD CIT(A) TO PASS FRESH PENALTY ORDERS IN THE LIGHT OF THE ORDERS THA T MAY BE PASSED IN QUANTUM APPEALS. 6. ON CONSIDERATION OF THE SUBMISSIONS OF LD REPRES ENTATIVES OF PARTIES AND THE FACTS OF THE CASE, WE CONSIDER IT PRUDENT TO RESTORE THE MATTER TO FILE OF LD CIT(A) WITH THE DIRECTION TO PASS FRESH PENALTY ORDERS AFTER DISPOS ING OF THE QUANTUM APPEALS PENDING BEFORE HIM, AND AFTER GIVING DUE OPPORTUNITY OF HEA RING TO THE PARTIES. 7. IN THE RESULT, ALL THE APPEALS FILED BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2012 SD/- (RAJENDRA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 5 TH DECEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),32, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY 21, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI