DC.CC47, MUMBAI V. SONAL ENTERPARISES, MUMBAI

ITSSA 26/MUM/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9209 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 09-05-2013
• Assessment Year: misc
• Appeal Filed On: 19-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Block assessment; Sham transactions
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORESHRI VIJAY PAL RAO, JM & SHRI RAJENDRA, AM ./ I.T(SS) A NO. 26/MUM/2010 & /CROSS OBJECT /CROSS OBJECT /CROSS OBJECT /CROSS OBJECTION NO. 47/MUM/2013 ION NO. 47/MUM/2013 ION NO. 47/MUM/2013 ION NO. 47/MUM/2013 ! ' (BLOCK ASSESSMENT PERIOD 1.4.96 TO 24.9.2002) THE DY COMMR OF INCOME TAX CC 47, MUMBAI ! # ! # ! # ! # / VS. SONAL ENTERPRISES 9 UDAY BLDG - 2 ND FLOOR 60 FEET ROAD, OPP ARPAN EYE BANK GHATKOPAR (E) MUMBAI 53 $ ./ % ./ PAN/GIR NO. : AANFS1190E ( (( ( $& $& $& $& / $& $& $& $& APPELLANT APPELLANT APPELLANT APPELLANT/RESPONDENT /RESPONDENT /RESPONDENT /RESPONDENT ) )) ) .. .. .. .. ( (( ( $& $& $& $& / RESPONDENT RESPONDENT RESPONDENT RESPONDENT/CROSS OBJECTOR /CROSS OBJECTOR /CROSS OBJECTOR /CROSS OBJECTOR ) )) ) $& $& $& $& ' ' ' ' / APPELLANT BY : SHRI DHIREN P TALATI $& $& $& $& ( (( ( ' ' ' ' /RESPONDENT BY : SHRI OM PRAKASH MEENA ! ) ! ) ! ) ! ) * ** * ( (( ( + + + + / DT. OF HEARING : 9 TH MAY 2013 ,-.' ,-.' ,-.' ,-.' ( (( ( + + + + / DT.OFPRONOUNCEMENT: 15 TH MAY 2013 / / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 29.1.2010 OF T HE COMMISSIONER OF INCOME TAX(APPEALS) ARISING FROM BLOCK ASSESSMENT U /S 158BC R.W.S 158BD. 2 THE REVENUE HAS RAISED THE ONLY GROUND IN THIS AP PEAL IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN DELETI NG THE ADDITIONS MADE U/S 69C ON ACCOUNT OF BOGUS SALES IN THE CASE OF THE ASSESSEE COMPANY IGNORING THAT THE ADDITIONS RELATI NG TO THE SHAM TRANSACTIONS OF BOGUS SALES/PURCHASES BETWEEN THE A SSESSED AND PAREKH PLATINUM LTD (PPL) WHICH WERE REVEALED CONSE QUENT UPON THE SEARCH ACTION, ARE ALSO CHALLENGED IN APPEAL BEFORE THE ITAT BY M/S PPL. IT(SS)A NO. 26/M/2010 . 2 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ONLY GRIEVANCE OF THE REVENUE IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX(APPEA LS) HAS DELETED THE ADDITION MADE IN THE HAND OF THE ASSESSEE IS ON PR OTECTIVE BASIS AS THE ADDITION ON SUBSTANTIVE BASIS HAS BEEN CONFIRMED BY THE COMMISSIONER OF INCOME TAX(APPEALS) IN THE CASE OF M/S PAREKH PLATI NUM LTD (PPL), WHICH HAS BEEN CHALLENGED BY THE ASSESSEE BEFORE THE TRIB UNAL. 4 DURING THE COURSE OF HEARING, IT WAS BROUGHT TO OUR NOTICE THAT THE APPEAL FILED BY M/S PPL IN IT(SS) A NO. 11/M/2010 A RISING FROM THE BLOCK ASSESSMENT PERTAINING TO THE SAME SEARCH AND SEIZUR E ACTION HAS BEEN DISMISSED BY THE TRIBUNAL FOR NON PROSECUTION VIDE ORDER DATED 28.2.2012. SINCE THE APPEAL FILED BY THE ASSESSEE IN THE CASE OF M/S PPL WHEREIN THE ADDITION MADE ON SUBSTANTIVE BASIS HAS BEEN CONFIRM ED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS NO MORE PEN DING BEFORE THE TRIBUNAL, BEING ALREADY DISMISSED FOR NON PROSECUTI ON; THEREFORE, AS ON DATE, THE ADDITION MADE ON SUBSTANTIVE BASIS STANDS CONFIRMED. IN VIEW OF THIS FACT, THE ADDITION MADE ON SUBSTANTIVE BASIS I N THE HAND OF M/S PPL REMAINS INTACT DUE TO THE REASON OF DISMISSAL OF T HE APPEAL FOR NON PROSECUTION. THEREFORE, THE APPEAL FILED BY THE RE VENUE IN THE CASE OF THE ASSESSEE WHERE THE ADDITION IS MADE ONLY ON PROTECT IVE BASIS DOES NOT SURVIVE. 4.1 HOWEVER, IN CASE THE APPEAL IN THE CASE OF M/S PPL IN IT(SS)A 11/MUM/2010 IS REVIVED ON THE APPLICATION OF THE AS SESSEE, THEN THIS IT(SS)A NO. 26/M/2010 . 3 APPEAL OF THE REVENUE WOULD ALSO BE REVIVED ON APPR OPRIATE APPLICATION ON BEHALF OF THE REVENUE. 4.2 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND ACCORDINGLY, THE APPEAL OF THE RE VENUE STANDS DISMISSED SUBJECT TO THE CONDITION AS DISCUSSED ABO VE. CROSS OBJECTION: NO.47/MUM/2013 (BY THE ASSESSEE) CROSS OBJECTION: NO.47/MUM/2013 (BY THE ASSESSEE) CROSS OBJECTION: NO.47/MUM/2013 (BY THE ASSESSEE) CROSS OBJECTION: NO.47/MUM/2013 (BY THE ASSESSEE) 5 THOUGH THE CROSS OBJECTION FILED BY THE ASSESSEE IS BARRED BY LIMITATION; HOWEVER, SINCE THE APPEAL OF THE REVENU E HAS BEEN DISMISSED; THEREFORE, WE DO NOT GO INTO THE QUESTION OF CONDON ATION OF DELAY IN FILING THE CROSS OBJECTION; BUT DISMISSED THE SAME AS BECO ME INFRUCTUOUS. 6 IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED 0 ' # 1 ( 2 ! 0 ( 0 ( 34 5 ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 5 TH MAY 2013 . / ( -.' * # 2 6! 1 15 TH #4) - ( 7) 5 SD/- SD/- ( ) (RAJENDRA ) ACCOUNTANT MEMBER ( ) (VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 15 TH , MAY 2013 RAJ* IT(SS)A NO. 26/M/2010 . 4 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI