MIHIR AGENCIES P.LTD, MUMBAI V. DCIT CC (46), MUMBAI

ITA 73/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0439 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 06-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, A M AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 73/MUM/2015 ( / ASSESSMENT YEAR: 2010 - 11) M/S. MIHIR AGENCIE S PVT. LTD. BLOCK H, SHRI SADASHIV CHS LTD. 6 TH ROAD, SANTACRUZ (E), MUMBAI - 400 055 / VS. DY. CIT, CENTRAL CIRCLE - 46, ROOM NO.659, 6 TH FLOOR, AAYAKAR BHAWAN, M. K. ROAD, MUMBAI ./ ./ PAN/GIR NO. AAGFM 0809 D ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MUKESH CHOKSI / RESPONDENT BY : SHRI T. A. KHAN / DATE OF HEARING : 12.12.2017 / DATE OF PRONOUNCEMENT : 13.02 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 14.05.2013 AND PERTAINS TO THE A SSESSMENT YEAR 2010 - 11. 2. THE ISSUE RAISED BY THE LD. COMMISSIONER O F INCOME TAX (APPEALS) ERRED IN CONFIRMING THE LEVY OF PENALTY AMOUNTING TO RS.25,11,000/ - . 3. BRIEF FACTS OF THE CASE ARE THAT THE CONCERNS WERE FLOATED AND RUN BY SHRI MUKESH CHOKSI. AFTER SEARCH AND SEIZURE ACTION, THE CONCERN WAS HELD TO BE THE 2 ITA NO. 73/MUM/2015 (A.Y. 2010 - 11) M/S. MIHIR AGENCIES PVT. LTD. VS. DY. CIT ACCOMM ODATION ENTRY PROVIDER. THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT AND ESTIMATED THE TOTAL INCOME @ NET COMMISSION OF 2% OF THE TOTAL RECEIPT S SHOWN IN THE BANK ACCOUNT. THE ASSESSEE CONTESTED THE SAME AND REQUESTED THE SAME TO BE MADE AT 0.15% IN VIEW OF THE ITAT DECISION IN THE ASSESSEES OWN CASE. HOWEVER, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT FIND THE FACTS IDENTICAL AND CONFIRMED THE ACTION OF THE ASSESSING OFFICER. ON THIS ACCOUNT, PENALTY ACTION WAS INITIATED AND PENALTY WAS L EVIED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS CONFIRMED THE LEVY OF PENALTY. 4. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. THE LD. COUNSEL OF THE ASSESSEE CONTENDED THAT IN IDENTICAL SITUATION IN ASSESSEES OWN CASE, THE ITAT HAS DETERMINED INCOME @ 0.15% OF THE NET RECEIPT. FURTHER, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN ASSESSEES OWN CASE AS WELL AS IN ASSESSEES GROUP CASES, PENALTY SIMILARLY LEVIED WERE DELETED BY THE ITAT IN THE FOLLOWING CASES: 1. M/S. MI HIR AGENCIES PVT. LTD. VS. DCIT (IN ITA NOS. 6435 TO 6441/MUM/2012 DATED 06.01.2016) 2. M/S. GOLDSTAR FINVEST PVT. LTD. VS. DCIT (IN ITA NOS.7564/MUM/2014, 7566 - 7570/MUM/2014) 3. M/S. WAVECOM BUILDERS PVT. LTD. & ANRS. (IN ITA NO.685/MUM/2015 & ORS.) 6. HE SUBMITTED THAT THE TRIBUNAL HAD REFERRED TO HONBLE CALCUTTA HIGH COURT DECISION IN THE CASE OF DURGA KAMAL RICE MILLS VS. CIT [2004] 265 ITR 25 (CALCUTTA) FOR THE FOLLOWING PROPOSITION: 3 ITA NO. 73/MUM/2015 (A.Y. 2010 - 11) M/S. MIHIR AGENCIES PVT. LTD. VS. DY. CIT WHEN TWO VIEWS ARE POSSIBLE AND WHEN NO CLEAR AND DEFINITE INFEREN CE CAN BE DRAWN, IN A PENALTY PROCEEDING, PENALTY CANNOT BE IMPOSED.. IN QUANTUM PROCEEDINGS, A PARTICULAR PROVISION MIGHT BE ATTRACTED TO THE INCOME OF THE ASSESSEE. BUT WHEN IT CAME TO THE QUESTION OF IMPOSITION OF PENALTY, THEN INDEPENDENT OF THE FIND ING ARRIVED AT THE QUANTUM PROCEEDINGS, THE A UTHORITY HAS TO FIND CONCLUSIVELY THAT THE ASSESSEE OWN S THE CONCEALED AMOUNT. 7. SINCE FACTS ARE IDENTICAL, AND ON SIMILAR FACTS ITAT HAS IN ASSESSEES OWN CASE DELETED THE PENALTY AND THE REVENUE HAS NOT SUBM ITTED TH AT THE HON'BLE JURISDICTIONAL HIGH COURT HAS REVERSED THE SAID DECISION, W E FOLLOW THE PRECEDENT AND DELETE THE LEVY OF PENALTY. 8. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.02.2018 SD/ - SD/ - ( PAWAN SINGH ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 13.02.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUA RD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI