ATMOSPHERE REALTY PVT LTD., MUMBAI V. ADDL CIT CENTRAL RANGE 5 , MUMBAI

ITA 941/MUM/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0245 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 31-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Principle of natural justice; Reasonable cause
• Section: 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR, AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 941 / MUM/ 2020 ( / ASSESSMENT YEAR: 20 16 - 1 7 ) ATMOSPHERE REALTY PVT. LTD. 808, KRUSHAL COMMERCIAL COMPLEX, G . M. ROAD, ABOVE SHOPPER STOP, CHEMBUR WEST, MUMBAI - 400089 . / VS. ACIT, CENTRAL RANGE - 5 MUMBAI - 400020. ./ ./ PAN/GIR NO. : AADCB 1183 B ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 23 / 1 2 / 20 20 /DATE OF PRONOUNCEMENT: 23 / 1 2 / 20 20 / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILE D BY THE ASSESSEE AGAINST TH E ORDER DATED 13 . 1 2 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), 53 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)]. RELEVANT TO THE A.Y. 2016 - 1 7 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS.: - 1. IN THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 1.38,00,000/ - U/S 271(1) OF THE ACT. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE 2. THE LD. CIT(A) ERRED IN NOT DELETING THE LEVY OF PENALT Y OF RS. 1,38,00,000/ - U/S. 271 D OF THE ACT, ON ACCOUNT OF THE FOLLOWING: ASSESSEE BY : NONE REVENUE BY: SHRI BRA JENDRA KUMAR (DR) ITA NO. 941 /M/20 20 A.Y.20 16 - 17 2 (A) THE AMOUNT OF RS.1,38,00,000/ - HAS BEEN ASSESSED AS 'UNDISCLOSED INCOME' AND THEREFORE, THE PROVISIONS OF SECTION 271 AAB( I) OF THE ACT OUGHT TO HAVE BEEN APPLIED AS IT OVERRI DES ALL OTHER PROVISIONS UNDER THE ACT INCLUDING SECTION 271 D OF THE ACT; WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE (B) THERE WAS A REASONABLE CAUSE FOR THE FAILURE AS REGARDS CASH RECEIPT OF RS. 1,38,00,000/ - IN RESPECT OF SALE OF FLATS: WIT HOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE (C) PROVISIONS OF SECTION 269SS WOULD BE APPLICABLE ONLY TO SPECIFIED SUMS, WHICH ARE RECORDED IN THE BOOKS OF ACCOUNT AND NOT OTHERWISE (I.E. WOULD NOT INCLUDE CASH RECEIPTS. WHICH ARE NOT RECORDED III T HE BOOKS OF ACCOUNT): WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE (D) IN SECTION 269SS OF THE ACT, CASH RECEIPTS ON SATE OF HATS WOULD HE COVERED AND NOT ADVANCES AND HENCE. THE PROVISIONS OF SECTION 269SS OF THE ACT DO NOT GET ATTRACTED TO T HE CASH RECEIPTS, BEING ADVANCED AGAINST SALE OF FLATS: WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE (E) AS THE CONCERNED PERSONS HAS GOT ONLY RIGHT TO OBTAIN THE OCCUPANCY AND NOT THE OWNERSHIP OF THE PROPERTY. THERE IS NO TRANSFER OF IMMOVABLE PR OPERTY AND HENCE, THE PROVISIONS OF SECTION 269SS OF THE ACT DO NOT GET ATTRACTED. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE ITA NO. 941 /M/20 20 A.Y.20 16 - 17 3 F. ON THE PRINCIPLE OF NATURAL JUSTICE, SINCE AN APPELLANT CANNOT BE CALLED UPON TO PAY TAX AND PENALTY MORE THAN TH E AMOUNT ALLEGED INVOLVED. 3. IT IS HUMBLY PRAYED THAT THE RELIEFS AS PRAYED FOR HEREINABOVE AND/OR SUCH OTHER RELIEFS AS MAY BE JUSTIFIED BY THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS MAY MEET THE ENDS OF JUSTICE SHOULD BE GRANTED. 4. THE APPELLAN T CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3 . WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT HE HAS FILED THE NECESSARY DECLARATION UNDER DIRECT TAX VIVAD SE VISHW AS ACT, 2020 (ACT 3 OF 2020) AND IS AWAITING FOR FINAL RESOLUTION OF THE MATTER UNDER THE SAID SCHEME. HE SUBMITTED THAT UPON COMPLETION OF THE NECESSARY FORMALITIES, HE WILL WITHDRAW THE APPEAL. IN RESPONSE TO THE SUGGESTION FROM THE BENCH, HE FAIRLY ACCE PTED THAT HE HAS NO OBJECTION TO THE APPEAL BEING DISMISSED AS WITHDRAWN AS LONG AS HIS RIGHT FOR REVIVAL OF THE APPEAL ARE PROTECTED, IN THE EVENT OF, FOR SOME UNFORTUNATE REASON, THE MATTER BEING NOT SETTLED UNDER THE VIVAD SE VISHWAS SCHEME. 4 . THE LD. DR HAS NO OBJECTION TO THE ABOVE . 5 . IN VIEW OF THE ABOVE, WE DISMISS THE APPEAL AS WITHDRAWN, SUBJECT TO BE RIDER THAT IN THE UNLIKELY EVENT OF MATTER NOT BEING RESOLVED UNDER THE VIVAD SE VISHWAS SCHEME , THE ASSESSEE SHALL HAVE LIBERTY TO APPROACH THE TR IBUNAL FOR RESTORATION OF HIS APPEAL. ITA NO. 941 /M/20 20 A.Y.20 16 - 17 4 6 . IN THE RESULT, THE APPEAL IS DISMISSED AS WITHDRAWN SUBJECT TO THE OBSERVATION ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 1 2 /2020 SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 23 / 12 / 2020 V IJAY PAL SINGH ( SR.PS ) / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRU E COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE.