HARMOZ S. SHAHARIARIN, MUMBAI V. DCIT CC 9, MUMBAI

ITSSA 4/MUM/2014

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1401 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: misc
• Appeal Filed On: 06-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Block assessment
• Section: 143(3); 158BFA; 158BC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI BEFORE S/SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND AMIT SHUKLA , JUDICIAL MEMBER IT (SS) A / NO.04/MUM/2014 (BLOCK ASSESSMENT PERIOD): 01-04-1996 TO 21-01-200 3 HARMOZ S. SHAHARIARIN, A-1, RUSTOM BAUG, SANT SAVTA MARG, BYCULLA, MUMBAI- 400027. / VS. THE ACIT- CC- 9, MUMBAI- 400020. ./ ./PAN/GIR NO. AAJPS8317B ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI . GAURAV BANSAL / RESPONDENT BY : SHRI . RAHUL RAMAN, CIT DR !' / DATE OF HEARING : 08/12/2015 #$%& !' / DATE OF PRONOUNCEMENT : 09/12/2015 / O R D E R PER JASON P. BOAZ , A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT (A)- 30 DT. 27/03/2014 CONFIRMING THE LEVY OF PENALTY U /S 158 BFA(2) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) FOR THE BLOCK PERIOD 01-04-1996 TO 21-01-2003. 2 IT (SS) A / NO.04/MUM/2014 (BLOCK ASSESSMENT PERIOD): 01-04-1996 TO 21-01-200 3 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSE D ARE AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE PENALTY U/S 158 FBA(2) OF THE ACT LEVIED BY THE ASS ESSING OFFICER WITHOUT EXAMINING THE MATTER JUDICIALLY AND REACHIN G A CONCLUSION THAT PENALTY WAS LEVIABLE OR NOT BUT MERELY ON EXA MINING THE CONDITIONS FOR EXEMPTION OF PENALTY UNDER FIRST PRO VISO TO SECTION 158BFA(2). THUS THE PENALTY LEVIED MUST BE DELETED. 2. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CON FIRMING THE PENALTY U/S 158BFA(2) OF ACT RS. 20,75,947/- WITHOU T PROPERLY APPRECIATING THAT THE CONDITIONS PRESCRIBED BY THE FIRST PROVISO TO SECTION 158 BFA(2) FOR EXCEPTION TO IMPOSITION PEN ALTY WERE FULFILLED AND THEREFORE, NO PENALTY SHOULD BE LEVIED. THUS TH E PENALTY MUST BE DELETED. 3. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CON FIRMING PENALTY U/S 158BFA(2) ON THE TOTAL INCOME OF RS. 32,95,154/ - WHICH INCLUDED INCOME OF RS. 24,15,154/- WHICH WAS ALREAD Y DISCLOSED BY THE ASSESSED IN THE RETURN OF INCOME FILED UNDER SE CTION 158BC AND SUFFICIENT ARRANGEMENTS WERE MADE FOR PAYMENT OF T AXES IN THE FORM OF CASH AND OTHER ASSETS SEIZED. THUS, THE PENALTY COULD NOT HAVE BEEN IMPOSED THEREON AND MUST BE DELETED. 4. THE LD. CIT(A) ERRED IN LAW AND ON FACTS UPHOL DING THE PENALTY CONFIRMED BY THE CIT(A) IN THE FIRST ROUND STATING THAT SINCE IN THE SECOND ROUND THE CIT(A) CONFIRMED THE ADDITION, THU S, THE PENALTY ORDER IN FIRST ROUND BY CIT(A) HOLDS GOOD WITHOUT A PPRECIATING THAT THE HONBLE ITAT SET ASIDE THE ORDER OF THE PENALTY AND DIRECTED TO DECIDE IT AFRESH. 3 IT (SS) A / NO.04/MUM/2014 (BLOCK ASSESSMENT PERIOD): 01-04-1996 TO 21-01-200 3 5. THE APPELLANT CRAVES THE LEAVES TO ADD, SUBSTITU TE, MODIFY, ALTER, DELETE OR AMEND ALL OR ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 3. AT THE OUTSET THE LD AR FOR THE ASSESSEE SUB MITTED THAT THE QUANTUM APPEAL FOR THE BLOCK PERIOD 01-04-1996 TO 2 1-01-2003 HAS BEEN DECIDED BY ORDER OF A CO-ORDINATE BENCH OF THI S TRIBUNAL IN IT(SS) A NO. 02/ MUM/2013 DT. 30/09/2014 ALLOWING THE ASSE SSEES APPEAL BY HOLDING THAT THE BLOCK ASSESSMENT ORDER PASSED U /S 158 BC(C) R.W.S. 143(3)OF THE ACT VIDE ORDER DT. 28/02/2005 IS BARRED BY LIMITATION. IT IS SUBMITTED THAT IN THESE CIRCUMS TANCES, THE LEVY OF PENALTY OF RS.20,75,947/- U/S 158BFA(2) OF THE ACT ON THE ASSESSEE WITH RESPECT TO THE UNDISCLOSED INCOME OF RS. 32,95 ,154/- BOUGHT TO TAX IN THE ASSESSMENT ORDER FOR THE BLOCK PERIOD 01 -04-1996 TO 21-01- 2003 WOULD NOT NOW SURVIVE AS THE BLOCK ASSESSMENT ORDER ITSELF HAS BEEN QUASHED. THE LD. AR PRAYS THAT CONSEQUENTLY TH E PENALTY OF RS. 20,75,947/- LEVIED U/S 158BFA(2) OF THE ACT IS TO DELETED. 4. WE HAVE HEARD BOTH THE LD. AR FOR THE ASSESSEE AND THE LD. DR FOR REVENUE AND HAVE PERUSED THE GROUNDS RAISED (SU PRA) AND THE RELEVANT RECORD. WE FIND THAT A CO-ORDINATE BENCH O F THE TRIBUNAL IN ITS ORDER IN THE ASSESSES CASE IN IT(SS) A 02/MUM/2013 DT. 30/09/2014, OF WHICH ONE OF US IS THE AUTHOR, HAS ALLOWED THE A SSESSES APPEAL ON THE QUANTUM MATTERS BY HOLDING AT PARA 9 THEREOF TH AT THE BLOCK ASSESSMENT ORDER PASSED U/S. 158BC(A) R.W.S. 143(3) OF THE ACT. DT. 28/02/2005 IS BARRED BY LIMITATION. IN THAT VIEW OF THE MATTER THE PENALTY LEVIED ON THE ASSESSEE U/S. 158BFA (2) OF T HE ACT, BASED ON THE ASSESSEE UNDISCLOSED INCOME IN THE ASSESSES HANDS, FOR THE AFORESAID 4 IT (SS) A / NO.04/MUM/2014 (BLOCK ASSESSMENT PERIOD): 01-04-1996 TO 21-01-200 3 BLOCK PERIOD WOULD NOW NOT SURVIVE AND WE THEREFORE , DELETE THE PENALTY OF RS. 20,75,947/- LEVIED THEREAFTER FOR TH E BLOCK PERIOD 01-04- 1996 TO 21-01-2003. 5. IN THE RESULT THE ASSESSES APPEAL IS ALLOWED A S INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 9 TH 2015 SD/- SD/- ( SHRI AMIT SHUKLA ) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; + DATED : 09.12.2015 !'!# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ,! ( ) / THE CIT(A)- 4. ,! / CIT 5. /01 2!234 , ' 34& , / DR, ITAT, MUMBAI 6. 156 7 / GUARD FILE. / BY ORDER, /! 2! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA