NAVTAR PARIKH HOUSE, MUMBAI V. DCIT CEN CIR-40, MUMBAI

ITSSA 103/MUM/2008

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9214 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-04-2013
• Assessment Year: misc
• Appeal Filed On: 23-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN VARMA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND N.K.BILLAIYA (AM) . . , . ! !! ! . '#$ '#$ '#$ '#$ , !% !% !% !% ! !! ! & & & & ' '' ' ( () * +,- ) /I.T.(SS)A NO.103/M/2008 ( / BLOCK PERIOD: 1.4.1990 TO 7.11.2000) NATVAR PARIKH IND. LTD., NATVAR PARIKH HOUSE, 107-109, P.M.MELLO ROAD, OPP SUGAR MARKET, MUMBAI-009 / VS. DCIT, CENT. CIRCLE-40, MUMBAI. . !% ./ /0 ./PAN/GIR NO. : AAACN 5361 L ( .1 / APPELLANT) .. ( 23.1 / RESPONDENT) .1 4 ! / APPELLANT BY : SHRI HARIOM TULSYAN 23.1 5 4 ! /RESPONDENT BY : SHRI PRAVIN VARMA 5 (% / DATE OF HEARING : 22.4.2013 678 5 (% /DATE OF PRONOUNCEMENT : 26.4.2013 !) / O R D E R PER B.R.MITTAL, JM: THE ASSESEE HAS FILED THIS APPEAL FOR BLOCK PERIOD 1.4.1990 TO 7.11.2000 AGAINST ORDER DATED 14.8.2008 DISPUTING THE ORDER OF LD CI T(A) IN CONFIRMING THE PENALTY LEVIED BY THE AO @ 150% OF TAX U/S.158BFA3(B) OF THE ACT. 2. AT THE TIME OF HEARING, LD A.R. SUBMITTED THAT T HERE WAS A SEARCH ON 7.11.2000 AND PURSUANT THERETO, ASSESSEE FILED RETURN FOR THE BLOCK PERIOD 1.4.1990 TO 7.11.2000 DECLARING UNDISCLOSED INCOME OF RS.1,34,00,000. TH E ASSESSING OFFICER COMPLETED THE ASSESSMENT ASSESSING THE TOTAL INCOME AT RS.1,81,97 ,680. ASSESSEE FILED APPEAL BEFORE LD CIT(A) AND LD CIT(A) ALLOWED THE APPEAL OF THE A SSESSEE IN PART BY GIVING RELIEF OF RS.77,54,377. IN VIEW OF THE ORDER OF LD CIT(A), T HE INCOME ASSESSABLE AFTER CONSIDERING RELIEF ALLOWED BY LD CIT(A) COMES TO RS.1,04,42,623 /- WHICH IS LESS THAN THE RETURNED INCOME FILED BY THE ASSESSEE. THEREFORE, AO ASSESS ED THE INCOME AT RS.1,34,00,000 CONSIDERING THE RELIEFS ALLOWED BY LD CIT(A). THE DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL AND TRIBUNAL UPHELD THE ADDITION AGGREGATI NG TO RS.50,62,377. THUS, THE I.T.(SS)A NO.103/M/2008 BLOCK PERIOD: 1.4.1990 TO 7.11.2000 2 INCOME ASSESSABLE AFTER GIVING EFFECT TO ITAT ORDER COMES TO RS.1,55,05,000. IN VIEW OF ABOVE, AO INITIATED PENALTY PROCEEDINGS AND LEVIED PENALTY U/S.158BFA(2) OF THE ACT VIDE ORDER DATED 27.6.2008 OF RS.69,05,262 BEING 15 0% OF TAX SOUGHT TO BE EVADED ON RS.50,92,377/-. BEING AGGRIEVED, ASSESSEE FILED AP PEAL BEFORE LD CIT(A). LD CIT(A) HAS UPHELD THE PENALTY ORDER. HENCE, THIS APPEAL BEFOR E THE TRIBUNAL. 3. AT THE TIME OF HEARING, LD A.R. REFERRED PAGE 2 OF THE PENALTY ORDER, WHICH AS UNDER: 4. HE SUBMITTED THAT IN THE ABOVE CHART, THE FACTS ARE NOT CORRECTLY STATED. HE MENTIONED THAT AMOUNT OF RS.24,09,577 SHOULD BE AMO UNT OF RS.27,09,577/- . HE FURTHER SUBMITTED THAT THE ITEM OF RS.3,30,000 IS N OT CORRECTLY STATED. HE SUBMITTED THAT ASSESSEE IN THE RETURN FILED, DISCLOSED THE SALE VA LUE OF CRANE AT RS.3 LAKHS BUT AO CONSIDERED ON THE BASIS OF SEIZED PAPER RS.3,30,000 AND, ACCORDINGLY, THERE WAS AN ADDITION OF RS.30,000 ONLY. HE FURTHER SUBMITTED T HAT THERE IS NO DISCUSSION IN RESPECT OF THE SAID AMOUNT OF RS.3,30,000 IN THE PENALTY OR DER AND THE SAID AMOUNT HAS ALSO NOT BEEN CONSIDERED FOR LEVY OF PENALTY U/S.158BFA(2) O F THE ACT. 5. LD D.R. HAS NOT DISPUTED ABOVE FACTS AND HAS AGR EED WITH LD A.R.THAT THE SAID FACTUAL MISTAKE REQUIRES RECTIFICATION AS BOTH THE AUTHORITIES BELOW HAVE NOT STATED THE AMOUNTS CORRECTLY. LD A.R. ALSO ADMITTED THAT NO R ECTIFICATION APPLICATION WAS FILED BEFORE THE AUTHORITIES BELOW TO CARRY OUT ABOVE FAC TUAL DISCREPANCY. I.T.(SS)A NO.103/M/2008 BLOCK PERIOD: 1.4.1990 TO 7.11.2000 3 6. CONSIDERING ABOVE FACTS AND IN ORDER TO STATE TH E CORRECT AMOUNT FOR WHICH THE PENALTY HAS BEEN LEVIED BY THE AUTHORITIES BELOW, I T WAS AGREED BY THE LD REPRESENTATIVES OF PARTIES THAT THE MATTER BE RESTORED TO LD CIT(A) TO RECONSIDER THE PENALTY ORDER AFTER CONSIDERING THE FACTUAL DISCREPANCY OF THE AMOUNT M ENTIONED, FOR WHICH, PENALTY HAS BEEN LEVIED YU/S.158BFA(2) OF THE ACT. 7. IN VIEW OF ABOVE FACTS AND SUBMISSIONS OF LD REP RESENTATIVES OF PARTIES, WE FIND JUSTIFICATION TO RESTORE THE MATTER TO LD CIT(A) WI TH A DIRECTION THAT HE WILL PASS FRESH PENALTY ORDER AFTER CONSIDERING FACTUAL MISTAKES IN RESPECT OF THE AMOUNTS FOR WHICH PENALTY U/S.158BFA(2) OF THE ACT HAS BEEN LEVIED FO R THE BLOCK PERIOD 1.4.90 TO 7.11.2000. THEREFORE, WE ALLOW GROUNDS OF APPEAL T AKEN BY ASSESSEE FOR STATISTICAL PURPOSES BY RESTORING THE ISSUE TO LD CIT(A) WITH A DIRECTION TO PASS A FRESH ORDER AFTER CONSIDERING THE SUBMISSIONS OF BOTH PARTIES BY A RE ASONED ORDER. 8. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 9 (: 9( 5 ;5 <=!> !'( ? 5 /( -# ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH APRIL, 2013 . !) 5 678 %! @ A : 26 TH APRIL, 2013 7 5 SD/- SD/- ( . ! . '#$CDEFEGHIIJHKJ ) ( . . /B.R.MITTAL) !% / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; A DATED 26 / 04/2012 . . ./ PARIDA , SR. PS !) !) !) !) 5 55 5 2(L 2(L 2(L 2(L ,!L8( ,!L8( ,!L8( ,!L8( / COPY OF THE ORDER FORWARDED TO : 1. .1 / THE APPELLANT 2. 23.1 / THE RESPONDENT. 3. M ( ) / THE CIT(A)- 4. M / CIT 5. L+ 2( , , / DR, ITAT, MUMBAI 6. N O / GUARD FILE. !) / BY ORDER, 3L( 3L( 3L( 3L( 2( 2(2( 2( //TRUE COPY// - / (ASSTT. REGISTRAR) , / ITAT, MUMBAI I.T.(SS)A NO.103/M/2008 BLOCK PERIOD: 1.4.1990 TO 7.11.2000 4