GURINDER SINGH BAWA, MUMBAI V. ASST CIT CEN CIR 29, MUMBAI

ITA 7475/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84471 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 11-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 18-12-2012
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: MANISH SANGHAVI

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 7475/M/2012 (ASSESSMENT YEAR : 2005 - 20 06 ) GURINDER SINGH BAWA, VIJAYHDEEP 22, SAHID GURU ANGAD NIKWAS, VITTAL NAGAR CHC, NS ROAD NO.1,JVPD SCHEME, JUHU, MUMBAI 400 020. / VS. ACIT - CENTRAL CIRCLE 29, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAOPB 9857 E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MANISH SANGHAVI / RESPONDENT BY : SHRI R.N. DSOUZA, DR / DATE OF HEARING : 11.12.2014 / DATE OF PRONOUNCEMENT : 11 .12.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 18.12.2012 IS AGAINST THE ORDER OF THE CIT (A) - 40, MUMBAI DATED 3.10.2012 FOR THE ASSESSMENT YEAR 2005 - 06. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) FOR RS. 31,54,719/ - IN RESPECT OF ADDITION OF RS. 93,72,310/ - ON ACCOUNT OF CASH CREDIT U/S 68. 2. THE ADDITION IN RESPECT OF WHICH THE PENALTY U/S 271(1)(C) WAS LEVIED BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE ITAT, MUMBAI BENCH G, MUMBAI VIDE ITA NO.2075/M/2010 DATED 16.11.2012 AND AS SUCH THE PENALTY LEVIED BY THE ASSESSING O FFICER WOULD NOT SURVIVE. 3. THE LD CIT (A) FAILED TO APPREC IATE THAT THE APPELLANT HAS NEI THER CONCEALED THE PARTICULARS OF HIS INCOME NOR FURNISHED ANY INACCURATE PARTICULARS OF SUCH INCOME. 4. IN REACHING TO THE CONCLUSION AND CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER, THE LD CIT(A) OMITTED TO CONSIDER RELEVANT FACTORS, CONSIDERATIONS, PRINCIPLES AND EVIDENCES WHILE HE WAS OVERWHELMED, INFLUENCED AND PREJUDICED BY IRRELEVANT CONSIDERATIONS AND FACTORS. 2 3. AT THE OUTSET, LD COUNSEL FOR T HE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE ON QUANTUM APPEALS VIDE ITA NOS.2075/M/2010 DATED 16.11.2012 AND MENTIONED THAT VIDE PARA 6.2 OF THE SAID ORDER OF THE TRIBUNAL, THE QUANTUM ADDITION WAS DELETED. IN THIS REG ARD, LD COUNSEL READ OUT THE RELEVANT LINES FROM THE SAID PARA 6.2 OF THE TRIBUNALS ORDER WHICH READ AS UNDER: 6.2.THE ASSESSING OFFICER NOT REFERRED TO ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH BASED ON WHICH ADDITION HAD BEEN MADE. THEREF ORE, FOLLOWING THE DECISION OF THE SPECIAL BENCH (SUPRA), WE HOLD THAT THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE ADDITION UNDER SECTION 153A. THE ADDITION MADE IS THEREFORE DELETED ON THIS LEGAL GROUND. ON MERIT ALSO WE DO NOT FIND ANY CASE TO SU STAIN THE ADDITION.. 4. ACCORDING LY, QUANTUM APPEAL FOR THE AY 2005 - 2005 IS TREATED AS ALLOWED. CONSIDERING DECISION OF THE ITAT IN THE QUANTUM APPEALS, LD COUNSEL FOR THE ASSESSMENT MENTIONED THAT THE ISSUE OF LEVY OF PENALTY U/S 271(1)(C) DOES NOT ARISE. THEREFORE, THE SAME IS DECIDED IN FAVOUR OF THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE CITED ORDER OF THE TRIBUNAL (SUPRA) DATED 16.11.2012, WE ARE OF THE OPINION THAT SINCE THE ADDITION MADE WAS DELETED IN THE QUANTUM AP PEAL VIDE ITA NO.2075/M/2010, THE ISSUE OF LEVY OF PENALTY WOULD NOT SURVIVE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNC ED IN THE OPEN COURT ON 1 1 T H DECEMBER, 2014. S D / - S D / - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 1 /12/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 3 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI