JAYESH K SAMAPT, MUMBAI V. DCIT CC (46), MUMBAI

ITA 927/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8383 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -H BENCH MUMBAI BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND RAMLAL NEGI,JUDICIAL MEMBER ./ITA.S./925-26/MUM/2015, /ASSESSMENT YEARS. 2005-06&06-07 ./ITA.S./927 & 422/MUM/2016, /ASSESSMENT YEARS.2007-08 & 08-09 JAYESH K SAMPAT, BLOCK H,SHRI SADASHIV CHS LTD. 6 TH ROAD,SANTACRUZE(W),MUMBAI-55 PAN:ADPKC7748Q VS. DCIT CENTRAL CIRCLE -46, 659,6 TH FLOOR,AAYKAR BHAVAN M K ROAD,MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT) / R EVENUE BY: SHRI M C OMI NINGSHEN -DR /ASSESSEE BY: SHRI MUKESH CHOKSI / DATE OF HEARING: 14/02/2017 & 20.02.2017 / DATE OF PRONOUNCEMENT: 23.02.2017 ,1961 254(1) ORDER U/ S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA A.M. - CHALLENGING THE ORDERS DATED 14/11/2014 OF THE CIT (A)-38,MUMBAI, THE ASSESSEE HAS FILED THE APPEAL FOR THE ABOVE-MENTIONED ASSESSMENT YEARS(AY. S.).ASSESSEE,AN INDIVIDUAL,IS PART OF GROUP OF CASES OF MEHUL CHOKSI GROUP.THE ASSESSING OFFICE R (AO),WHILE COMPUTING THE INCOME OF THE ASSESSEE FOR THE ABOVE YEARS HAD MADE CERTAIN ADDIT ION IN THE QUANTUM PROCEEDINGS. BESIDES,HE ALSO INITIATED PENALTY PROCEEDING,U/S.271(1)(C)OF T HE ACT,FOR FILING INACCURATE PARTICUL -ARS OF INCOME.ISSUE INVOLVED IN ALL THE APPEALS ARE COMMON ,SO,WE ARE DISPOSING OFF THE APPEALS BY PASSING A SINGLE COMMON ORDER. ITA/924/MUM/2015-AY.2005-06: 2. EFFECTIVE GROUND OF APPEAL IS LEVY OF PENALTY.THE A O,WHILE DECIDING THE ISSUE OF LEVY OF PENALTY U/S.271(1)(C),HELD THAT THE ASSESSEE HAD FU RNISHED INACCURATE PARTICULARS AND THUS HAD EVADED TAX.HE LEVIED A PENALTY OF RS.5 LAKHS,VIDE H IS ORDER 22.03.2013.THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA),WH O CONFIRMED THE ORDER OF THE AO. 3. IT WAS BROUGHT TO OUR NOTICE THAT IN ASSESSEES OWN CASE THE TRIBUNAL HAD,VIDE ORDER DATED 28/ 10/2016(ITA.S.1000-1003&1005/MUM/2013-AY.S.2005-06 TO 2007-08 & 2010-11)HAD PARTLY ALLOWED THE QUANTUM APPEAL FILED BY THE ASSESSEE AN D THAT FOR THE AY.2004-05& 2009-10( ITA.S/ 924&928/MUM/2015,DTD.28.10.2016) PENALTY LEVIED U/S .271(1)(C) OF THE ACT WAS ALSO CANCELLED. 925-26/MUM/2015 & 927 & 422/MUM/2016 JAYESH K. SAMPAT 2 4. WE FIND THAT IN QUANTUM APPEALS,THE TRIBUNAL IN ABO VE ORDER,HELD AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF THE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PROPER O PPORTUNITY WAS GIVEN AND HENCE ASSESSMENT SHOULD BE SET ASIDE TO THE ASSESSING OFFICER FOR FR ESH ADJUDICATION AND HE FURTHER SUBMITTED THAT ISSUE IN APPEAL IS SQUARELY COVERED BY VARIOUS DECI SIONS OF THE COORDINATE BENCHES WHEREIN IT WAS HELD THAT COMMISSION INCOME FROM THE BUSINESS OF AC COMMODATION ENTRIES SHOULD BE ASSESSED AT 0.15% AS AGAINST 2% ASSESSED BY THE ASSESSING OFFIC ER. TAKING NOTE OF ALL THE DECISIONS AND SUBMISSIONS OF THE LD.DEPARTMENTAL REPRESENTATIVE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER SHOULD EXAMINE ALL THESE SUBMISSIONS OF THE LD.DEPA RTMENTAL REPRESENTATIVE AND THE CASE LAWS RELIED ON BY THE LD.COUNSUL FOR THE ASSESSEE AND DE CIDED THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THUS, WE RESTORE THE ASSESSMENTS TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AFRESH IN ACCORDANCE WITH THE LAW AFTER PROVIDING ADEQUATE OP PORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2005 06 TO 2007-08 AND 2010 11 ARE ALLOWED FOR STATISTICAL PURPOSES 4.1. THE TRIBUNAL,DELETING THE PENALTY FOR THE AY.2004-0 5 AND 2009-10, REFERRED TO THE CASE OF ALPHA CHEMICAL TRADE AGENCIES PRIVATE LIMITED(ITA/6 98 & 709/MUMBAI/2015)I.E. ON THE GROUP CASE AND REPRODUCED THE ORDER OF THAT CASE AS FOLLO W: XXXXXX 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IT IS ABUNDANTLY CLEAR THAT MODUS OPERANDI AND THE NATURE OF INCOME ON BY THE ASSESSEE, WHICH HAS BEEN SUBJECTED TO PENAL PROVISIONS OF SECTION 271(1)(C) OF THE ACT IN THE INSTANT CASE, A RE SIMILAR TO THOSE CONSIDERED BY THE CO-ORDINATE BENCH IN THE CASE OF MIHIR AGENCIES PRIVATE LTD.,& MUKESH CHOKSI(SUPRA). IT IS ALSO ABUNDANTLY CLEAR THAT IN THE PRESENT CASE ALSO THE VARIATION I N QUANTUM OF INCOME ASSESSABLE BETWEEN ASSESSEE AND THE REVENUE IS ON ACCOUNT OF ESTIMATIO N ONLY, AND IDENTICAL SITUATION WHICH HAS BEEN CONSIDERED IN THE AFORESAID PRECEDENTS, WHICH HAVE BEEN RENDERED IN SIMILAR CIRCUMSTANCES, WE HEREBY SET ASIDE THE ORDER OF THE CIT (A) AND DIREC T THE ASSESSING OFFICER TO DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. THUS, O N THIS ASPECT, ASSESSEE SUCCEEDS. 7. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE D ELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C) IN THESE CASES, AS THE FACTS AND CIRCUMST ANCES BEING IDENTICAL, AS THE COMMISSION INCOME ASSESSABLE IN THE HANDS OF THE ASSESSEE HAS BEEN ON ESTIMATE BASIS, NO PENALTY IS ATTRACTED ON THE ADDITIONS, DISALLOWANCE IS MADE ON ESTIMATE BASIS. RESPECTFULLY FOLLOWING THE SAID ORDER, WE DELETE TH E PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT IN THESE CASES ALSO. FOLLOWING THE ABOVE ORDERS OF THE TRIBUNAL,WE DECID E THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE AS THE MATTER HAS BEEN REMANDED BACK TO THE FILE OF THE AO, IN THE QUANTUM APPEA,L FOR FRESH ADJUDICATION,SO,THE PENALTY WOULD NOT SUR VIVE FOR THE YEAR UNDER APPEAL. ITA.S./926,422 & 927/MUM/2015 AY.S.2006-07 TO 2008- 09 FOLLOWING OUR ORDER FOR THE AY.2005-06,WE DELETE TH E PENALTY LEVIED BY THE AO AND CONFIRMED BY THE FAA FOR THE ABOVE MENTIONED THREE AY.EFFECTI VE GROUND STANDS DECIDED IN FAVOUR OF THE ASSESSEE. 925-26/MUM/2015 & 927 & 422/MUM/2016 JAYESH K. SAMPAT 3 AS A RESULT,ALL THE AP PEALS FILED BY THE ASSESSEE STAND ALLOWED . ORDER PRONOUNCED IN THE OPEN C OURT ON 23 RD FEBRUARY ,2017. 23 ,2017 SD/- SD/- ( / RAMLAL NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 23 . 02.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR H BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.