ACIT 26 (1), MUMBAI V. MR JOHN JAMES DSOUZA, MUMBAI

ITA 7545/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2001 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 09-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 147; 27; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F , MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER ITA NO. 7545 /MUM/2019 ASSESSMENT Y EAR: 2005 - 06 ITA NO. 7 546 /MUM/2019 ASSESSMENT YEAR: 2006 - 07 & IT A NO. 7547 /MUM/2019 ASSESSMENT YEAR: 2007 - 08 ASSISTANT COMMISSIONER OF INCOME TAX 26 (1), ROOM NO. 302, 3 RD FLOOR, KAUTILYA BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 VS. MR. JOHN JAMES DSOUZA, 402, HORIZON VIEW 4, OFF J.P. ROAD, SEVEN BUNGALOWS, ANDHERI (WEST), MUMBAI - 400061 PAN: AAGPD5189F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI MS. USHA GAIKWAD (D R) ASSESSEE BY : SHRI PRADIP KAPASI ( A R ) DATE OF HEARING: 17 /05 /20 21 DA TE OF PRONOUNCEMENT: 02 / 0 6 /202 1 O R D E R PER SAKTIJIT DEY , JM THE CAPTIONED APPEALS BY THE REVENUE RELATING TO THE SAME ASSESSEE ARISE OUT OF THREE SEPARATE ORDERS , ALL DATED 27.06.2019 , OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 38, MUM BAI DELETING THE PENALTY IMPOSED U NDER SECTION 27 1 (1)(C) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2007 - 08. 2 ITA NO S . 7545 - 7547 / MUM/2019 ASSESSMENT YEAR S : 2005 - 06, 2006 - 07 & 2007 - 08 2. WE HAVE CONSIDERED THE SUBMISSIONS OF SMT. USHA GAIKWAD, THE LEARNED DEPARTMENTAL REPRESENTATIVE AND SHRI PRADI P KAPASI, THE LEARNED COUNSEL FOR THE ASSESSEE. 3. BRIEFLY THE FACTS ARE , THE ASSESSEE IS AN INDIVIDUAL . FOR ALL THE ASSESSMENT YEARS ARE DISPUTE THE ASSESSEE HAD FILED HIS RETURN OF INCOME IN REGULAR COURSE. SUBSEQUENTLY, THE A SSESSING O FFICER HAVING RECE IVED INFORMATION THAT THE ASSESSEE HAD NOT DISCLOSED CERTAIN DEPOSIT S , INTEREST AND OTHER TRANSACTIONS IN A PARTICULAR BANK ACCOUNT , REOPEN ED THE ASSESSMENT S U NDER SECTION 147 OF THE ACT . ULTIMATELY, THE ASSESSMENT OFFICER COMPLETED ASSESSMENT S U NDER SECTI ON 143(3) R.W.S. 147 OF THE ACT FOR ALL THE AFORESAID ASSESSMENT YEARS MAKING CERTAIN ADDITIONS. AGAINST THE ASSESSMENT ORDER S SO PASSED THE ASSESSEE PREFERRED APPEAL S BEFORE LEARNED COMMISSIONER (APPEALS) AND THEREAFTER BEFORE THE TRIBUNAL. DURING THE PEN DENCY OF ASSESSEES APPEALS BEFORE THE TRIBUNAL , BASED ON THE ADDITIONS MADE IN THE ASSESSMENT ORDER S THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY U NDER SECTION 271(1)(C) OF THE ACT OF VARIOUS AMOUNTS. AGAINST THE PENALTY ORDERS SO PASSED THE ASSESSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). L EARNED COMMISSIONER (APPEALS) DISPOSED OF THE APPEALS FILED BY THE ASSESSEE WITH THE FOLLOWING COMMON OBSERVATIONS: 5.1 I HAVE PERUSED THE ORDER DATED 09.11.2017 PASSED BY TH E HONBLE ITAT, SMC BENCH, MUMBAI, IN ITA NOS. 6900/MUM/2016 IN THE APPELLANTS OWN CASE ON THE QUANTUM APPEAL FILED BY THE APPELLANT. IT IS SEEN THAT THE HONBLE TRIBUNAL HAVE DIRECTED THE AO TO RE - EXAMINE THE CLAIM OF THE ASSESSEE, THE FACTUAL MATRIX AND THEN DECIDE IN ACCORDANCE WITH LAW ON THE ABOVE ADDITIONS AND IN VIEW OF THE SAME, THE HONBLE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH BY AFFORDING AN OPPORTUNITY. IN OBEDIENCE TO THE DIRE CTIONS OF THE HONBLE ITAT THE AO HAS MADE THE ASSESSMENT VIDE ORDER U/S 143 (3) R.W.S. 254 DATED 31.12.2018. IN THE SAID FACTS AND CIRCUMSTANCES SINCE ASSESSMENT 3 ITA NO S . 7545 - 7547 / MUM/2019 ASSESSMENT YEAR S : 2005 - 06, 2006 - 07 & 2007 - 08 ORDER FROM WHICH THE PENALTY ORDER HAS ARISEN IS NON - EXISTENT, THE CORRESPONDING PENALTY ORDE R HAS NO LEGS TO STAND. 5.2 IN VIEW OF THE ABOVE, THE PENALTY ORDER PASSED BY THE AO IS NON MAINTAINABLE ANYMORE AS THE ASSESSMENT ORDER WHEREIN THE PENALTY PROCEEDINGS U/S 271 (1) (C) WAS INITIATED AND LEVIED DOES NOT EXIST. HENCE, THE GROUNDS OF APPEAL ARE NOT ADJUDICATED. THE APPEAL OF THE APPELLANT IS DISPOSED AS NON - MAINTAINABLE. 4 . IN OUR VIEW, THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS) REPRODUCED HEREIN ABOVE ARE SELF EXPLANATORY. UNDISPUTEDLY, THE PENALTY PROCEEDINGS U NDER SECTION 271(1) (C) OF THE ACT WERE INITIATED BASED ON ADDITIONS MADE IN THE ASSESSMENT ORDERS PASSED U NDER SECTION 143(3) R.W.S. 147 OF THE ACT. IT IS A FACT ON RECORD THAT WHILE DECIDING ASSESSEES APPEALS ARISING OUT OF THOSE ASSESSMENT ORDERS, THE TRIBUNAL VIDE ORDER DATED 09.11.2017 IN ITA NO. 6900 TO 6903/MUM/2016 HAS SET ASIDE THE ASSESSMENT S BACK TO THE FILE OF A SSESSING O FFICER WITH A DIRECTION TO MAKE AFRESH ASSESSMENT S . THEREFORE, WHEN THE ASSESSMENT ORDERS BASED ON WHICH PENALTY U NDER SECTION 271(1)(C) OF THE A CT HAVE LOST THEIR EXISTENCE, THE ORDERS PASSED IMPOSING PENALTY CANNOT SURVIVE. 5 . PERTINENTLY, IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL, THE A SSESSING O FFICER HAS PASSED AFRESH ASSESSMENT ORDER S U NDER SECTION 143(3) R.W.S. 254 OF THE ACT VIDE ORDE R S DATED 31.12.2018 . FURTHER, WHILE DOING SO THE A SSESSING O FFICER HAS AGAIN INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY U NDER SECTION 271(1)(C) OF THE ACT BASED ON THE ADDITIONS MADE. FOR THE AFORESTATED REASONS , WE FULLY AGREE WITH THE VIEW EXPRESSED BY THE LEARNED COMMISSIONER (APPEALS). 6 . IN THE RESULT, APPEAL S FILED BY THE REVENUE ARE DISMISSED . 4 ITA NO S . 7545 - 7547 / MUM/2019 ASSESSMENT YEAR S : 2005 - 06, 2006 - 07 & 2007 - 08 ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JUNE , 2021 . SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) ACCOUNTANT MEMBER ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 02 / 0 6 /202 1 ALINDRA, PS / 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