Shri Suresh R Gupta, Nagpur V. A.C.I.T Circle-3, Nagpur

ITSSA 12/NAG/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9217 (ITAT-NAGPUR)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C THAKKAR; C J THAK K

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR RAO , A M IT (SS) A NO. 12 / N AG / 20 1 2 ( BLOCK PERIOD FROM 1 - 4 - 1989 TO 12 - 11 - 1999 ) SHRI SURESH R. GUPTA, C/O BANARASI BHANDAR, TANGA STAN D CHOWK, ITWARI, NAGPUR - 440 002 VS. ACIT CIRCLE - 3, NAGPUR. PAN NO. : A FHPG 7920 F ( APPELLANT ) .. ( RESPONDENT ) AND IT (SS) A NO. 13 / NAG /20 12 ( BLOCK PERIOD FROM 1 - 4 - 1989 TO 12 - 11 - 1999 ) SHRI DINESH R . GUPTA, C/O BANARASI BHANDAR, TANGA STAND CHOWK, ITWA RI, NAGPUR - 440 002 VS. ACIT CIRCLE - 3, NAGPUR. PAN NO. : A CCPG 1296 K ( APPELLANT ) .. ( RESPONDENT ) AND IT (SS) A NO. 1 4 / NAG /20 12 ( BLOCK PERIOD FROM 1 - 4 - 1989 TO 12 - 11 - 1999 ) SMT. SHANTIDEVI R. GUPTA, C/O BANARASI BHANDAR, TANGA STAND CHOWK, ITWARI, NAGPU R - 440 002 VS. ACIT CIRCLE - 3, NAGPUR. PAN NO. : A F I PG 5545 H ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : MR. C.J.THAK K AR & MR. S.C. THAKKAR REVENUE BY : MR. PRAKASH MANE DATE OF HEARING : 1 3 TH MARCH ., 201 3 DATE OF PRONOUNCEMENT : 0 3 /0 4/ 201 3 O R D E R P ER BENCH : TH ESE THREE APPEALS HAVE BEEN PREFERRED BY THE THREE DIFFERENT ASSESSEES BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAIN ST THE ORDER OF LEANED CIT(A) - II , NAGPUR (MAHARASHTRA) RELATING TO THE BLOCK PERIOD FROM 1 - 4 - 1989 TO 12 - 11 - 1999 , WHICH HA VE BEEN HEARD THROUGH E - COURT, MUMBAI. IT (SS) A NO S . 12 TO 14 /20 1 2 2 \ 2 . SINCE COMMON ISSUES ARE INVOLVED IN ALL THE CASES, THEREFORE, FOR THE SAKE OF CONVENIENCE , THESE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 3 . IN IT ( S S) A NO. 12/NAG/2012 FILED B Y THE ASSESSEE SHRI SURESH R. GUPTA, IS OBJECTING IN CONDONING THE DELAY OF 24 DAYS AND CONFIRMING THE LEVY OF PENALTY UNDER SECTION 15BFA AMOUNTING TO RS. 90 LACS. 4 . IN FACT, IN THIS CASE , IN FIRST GROUND THE PENALTY LEVIED UNDER SECTION 158BFA OF THE AC T WERE DELETED BY THE CIT(A) AND ON SECOND APPEAL BY THE DEPARTMENT, THE TRIBUNAL DIRECTED TO RECOMPUTE THE PENALTY ON THE BASIS OF QUANTUM SUSTAINED BY THE TRIBUNAL . THIS ORDER WAS PASSED BY THE TRIBUNAL IN IT (SS) A NO S . 03 TO 07 /NAG/2007 IN CASE S OF SMT. S HANTIDEVI R. GUPTA, SHRI ADESH GUPTA, SHRI SURESH GUPTA, SHRI DINESH GUPTA AND SHRI RAJENDRA GUPTA, VIDE ORDER DATED 13 - 4 - 2007. BY THIS ORDER OF THE TRIBUNAL, THE APPEAL IN CASE OF SHRI SURESH R. GUPTA, LISTED UNDER IT (SS) A NO. 5/NAG/2007 WAS DISMISSED BY T HE TRIBUNAL AND IN CASES OF SMT. SHANTIDEVI AND SHRI DINESH GUPTA, THE APPEALS WERE RESTORED TO THE FILE OF THE AO FOR PASSING A FRESH ORDER LEVYING PENALTY ON REDUCED AMOUNT BY THE TRIBUNAL IN QUANTUM APPEALS. THE FINDING OF THE TRIBUNAL HAS BEEN RECORD ED IN PARA 5, WHEREIN IT HAS BEEN MENTIONED THAT IN THE REMAINING CASES, NAMELY, IN THE CASE OF SMT. SHANTIDEVI GUPTA AND SHRI DINESH GUPTA, AS HAS BEEN POINTED OUT BY THE LEARNED COUNSEL THAT THE AMOUNT OF ADDITION BEING THE DIFFERENCE BETWEEN THE UNDISCL OSED INCOME DECLARED BY THE ASSESSEE AND AS FINALLY SETTLED BY THE HON BLE ITAT IN QUANTUM IT (SS) A NO S . 12 TO 14 /20 1 2 3 APPEALS HAS BEEN UPHELD AT RS. 23,996/ - AND RS. 13,957/ - FOR THE BLOCK PERIOD RESPECTIVELY. ACCORDINGLY, THE MATTER WAS RESTORED TO THE FILE OF THE AO TO COMPUTE THE P ENALTY ON THESE AMOUNTS. 5 . HOWEVER, INADVERTENTLY, THE AO RECOMPUTED THE PENALTY IN CASE OF SHRI SURESH GUPTA ALSO, WHEREAS THE APPEAL OF THE DEPARTMENT WAS DISMISSED BY THE TRIBUNAL IN RESPECT TO PENALTY LEVIED UNDER SECTION 158BFA. THEREFORE, THERE WA S NO REASON TO RECOMPUTE THE PENALTY IN THIS CASE. HOWEVER, WE NOTED THAT LEARNED CIT(A) DID NOT CONDONE THE DELAY BY OBSERVING THAT IN FACT, NO APPEAL LIES AGAINST THE ORDER OF THE ITAT, WHEREAS FINAL DIRECTION HAS BEEN GIVEN TO THE AO AND CONSEQUENTLY TH E AO PASSED THE ORDER, FOR THIS REASON THE DELAY WAS NOT CONDONED BY THE LEARNED CIT(A) . 6 . AFTER CONSIDERING THE SUBMISSION AND ARGUMENTS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT SINCE THE PENALTY LEVIED BY THE AO HAS ATTAINED FINALITY AS THE ORDER OF THE CIT(A), WHO CANCELLED THE LEVY OF PENALTY, WHICH HAS BEEN SUSTAINED BY THE TRIBUNAL, THEREFORE, THERE WAS NO QUESTION TO RECOMPUTE THE PENALTY IN THIS CASE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WHILE CONDONI NG THE DELAY IN BOTH THE APPEAL BEFORE THE CIT(A), WE HELD THAT IN THIS CASE THERE IS NO NEED TO RECOMPUTE ANY PENALTY AS THE TRIBUNAL HAS NOT RESTORED THE ISSUE IN THE CASE OF THIS ASSESSEE I.E. SHRI SURESH R. GUPTA. 7 . ACCORDINGLY, IT (SS) A NO. 12/NAG/2012 FILED BY SHRI SURESH R. GUPTA, IS ALLOWED . IT (SS) A NO S . 12 TO 14 /20 1 2 4 8 . IT (SS) A NO. 13/NAG/2012 : - THE AFORESAID APPEAL HAS BEEN FILED BY ASSESSEE SHRI DINESH R. GUPTA, WHEREIN SIMILAR FACTS ARE INVOLVED AS DISCUSSED IN IT (SS ) A NO 12/NAG/2012 ABOVE. THE TRIBUNAL RESTORED THE ISSUE TO THE FILE OF THE AO TO RECOMPUTE THE PENALTY ON THE AMOUNT OF RS. 13,957/ - SUSTAINED IN THE QUANTUM APPEAL. HOWEVER, WHILE THE AO RECOMPUTED PENALTY AS LEVIED THE PENALTY ON AN AMOUNT OF RS. 2,00,280/ - . THEREFORE, THE AO WAS NOT JUSTIFIED IN RECOMPUTING THE PENALTY ON THE ENTIRE A DDITION MADE EARLIER. 8.1 SINCE THE ADDITION HAS BEEN RESTRICTED TO THE AMOUNT OF RS.13,957/ - IN THE QUANTUM ADDITION, ACCORDINGLY, THE PENALTY HAS TO BE LEVIED ON THIS AMOUNT. FOR THE SAKE OF CLARIFICATION ALSO, THE PENALTY HAS TO BE RECOMPUTED ON THE B ASIS OF RATE OF RATIO ON WHICH THE PENALTY WAS LEVIED IN ORIGINAL ORDER AS IT IS SEEN THAT PENALTY HAS BEEN LEVIED IN THIS CASE AT RATE OF 300%, WHEREAS IN THE EARLIER ORDER THE PENALTY WAS LEVIED ABOUT 113%. 8.2 ACCORDINGLY, WE DIRECT THE AO TO RECOMPUT E THE PENALTY ON THE BASIS OF RATIO OF PENALTY ADOPTED WHILE IMPOSING THE PENALTY IN ORIGINAL ORDER AND PENALTY WILL BE COMPUTED ONLY ON THE AMOUNT OF ADDITION SUSTAINED BY THE TRIBUNAL IN QUANTUM OF APPE A L. 9 . IT (SS) A NO.1 4 /NAG/2012 : - THE AFORESAID AP PEAL HAS BEEN FILED BY ASSESSEE SMT. SHANTIDEVI R. GUPTA, WHEREIN SIMILAR FACTS ARE ALSO INVOLVED AS DISCUSSED IN IT (SS) A NO . 12/NAG/2012 ABOVE. IN THIS CASE ALSO THE IT (SS) A NO S . 12 TO 14 /20 1 2 5 TRIBUNAL RESTORED THE ISSUE TO THE FILE OF THE AO FOR RECOMPUTING THE PENALTY ON THE AMOUN T OF ADDITION SUSTAINED AT RS. 23,996/ - . THE AO HAS RECOMPUTED THE PENALTY THOUGH ON THIS AMOUNT, HOWEVER, HE HAS LEVIED PENALTY AT THE RATE OF 300%, WHEREAS AS STATED BY LEARNED AR THAT ORIGINALLY THE PENALTY WAS LEVIED AT THE RATE ABOUT 113%. 9.1 ACCORD INGLY, WE DIRECT THE AO TO RECOMPUTE THE PENALTY ON THE AMOUNT SUSTAINED BY THE TRIBUNAL AT THE RATE OF PENALTY LEVIED ORIGINALLY. WE ORDER ACCORDINGLY. 10 . RESULTANTLY, IT (SS) A NO. 12/NAG/2012 FILED BY SHRI SURESH R. GUPTA IS ALLOWED AND IT(SS)A NOS.13 & 14/NAG/2012 FILED BY SHRI DINESH R. GUPTA AND SMT. SHANTIDEVI R. GUPTA, RESPECTIVELY ARE ALLOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF APR. 2013. SD/ - SD/ - ( D.KARUNAKAR RAO ) ( R. K.GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 0 3 / 04 / 201 3 . PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) ,NAGPUR . 4. CIT 5. DR, ITAT, MUMBAI /NAGPUR 6. GUARD FILE. //TRU E COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI