LATE SHRI RAMESH B. SHARMA ( THROUGH HIS LEGAL HEIR SMT. SANGEET SHARMA), MUMBAI V. ASST CIT RG 17(2), MUMBAI

ITSSA 44/MUM/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7775 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-01-2012
• Assessment Year: misc
• Appeal Filed On: 06-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: V P KOTHARI
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D,MUMBAI BEFORE SHRI D.K. AGARWAL (JM) & SHRI T.R. SOOD (AM) I.T.(SS)A. NO.44/MUM/2010 (BLOCK PERIOD: 01-04-1987 TO 07-10-2007) LATE SHRI RAMESH B. SHARMA (THROUGH HIS LEGAL HEIR SMT.SANGEETA R. SHARMA), RH-1, RADHIKA, C/O. P.G. THAKUR, ASHA NAGAR, KANDIVLI (E), MUMBAI-400 101. PAN: AGXPS7331R. VS. ASST.COMMR. OF INCOME-TAX, RANGE 17(2), MUMBAI. APPELLANT RESPONDENT APPELLANT BY SHRI V.P. KOTHARI. RESPONDENT BY SHRI C .G.K. NAIR. DATE OF HEARING 25 - 0 1 - 201 2 DATE OF PRONOUNCEMENT 31 - 0 1 - 201 2 O R D E R PER T.R. SOOD, AM : IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWI NG TWO GROUNDS : 1. THE LEARNED C.I.T. (APPEALS) HAS ERRED IN LAW A ND ON FACTS IN CONFIRMING THE PENALTY OF RS.7,51,674/- LEVIED BY THE ASST. C.I.T., RANGE 17(2), MUMBAI, WITHOUT PROPERLY CONSIDERING THE ORDER OF THE HONBLE ITAT, BENCH F MUMBAI IN APPEAL NO. ITA /173/MUM/2004 WHEREIN THE HONBLE ITAT HAS GIVEN SUBSTANTIAL RELIEF IN QUANTUM APPEAL. 2. THE LEARNED C.I.T. (APPEALS) HAS ERRED IN LAW AN D ON FACTS IN CONFIRMING THE PENALTY U/S. 158BFA(2) IT (SS) A NO.44/M/2010 LATE RAMESH B. SHARMA . 2 WITHOUT PROPERLY CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE APPELLANT IS NO MORE IN THIS WORLD AND REPRESENTATIVE OF THE LATE APPELLANT CAN NOT EXPLAIN ALL THE FACTS AND DEEDS O F THE DECEASED. AFTER HEARING BOTH THE PARTIES, WE FIND THAT A SEAR CH WAS CONDUCTED IN THE PREMISES OF MRS. SANGEETA SHARMA, WIDOW OF LATE SHR I RAMESH B. SHARMA. IN RESPONSE TO NOTICE U/S.158BC, THE ASSESSEE FILED NI L RETURN. THE INCOME FOR THE BLOCK PERIOD WAS DETERMINED AT RS.16,38,870/-. THE ADDITION WAS ON ACCOUNT OF UNEXPLAINED INVESTMENT, AGRICULTURAL INCOME AND LOW WITHDRAWALS ETC. PENALTY PROCEEDINGS U/S158BFA(2) WERE INITIATED BUT NO EXPL ANATION WAS FILED. THE AO OBSERVED THAT THE ASSESSEE HAS NOT DISCLOSED INCOME TO THE EXTENT OF RS.12,52,790/- AND THEREFORE MINIMUM PENALTY OF RS. 7,51,674/-, BEING 100% OF TAX, WAS LEVIED. 2. BEFORE THE CIT(A), RELIANCE WAS PLACED ON THE FO LLOWING DECISIONS : CIT VS. HARKARAN DAS VED PAL (2009) 222 CTR (DEL) 438 KRISHNAKUMAR R. PARMAR SPL 25394 OF 2009 (SC) AND SUBMITTED THAT PENALTY CANNOT BE LEVIED IN VIEW OF THE ABOVE DECISIONS. THE LD. CIT(A) OBSERVED THAT THE SAID DECISIONS WERE NO T APPLICABLE TO THE FACTS OF THE CASE AND PENALTY WAS CONFIRMED. 3. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT THE LD. CIT(A) HAS WRONGLY ASSUMED THAT THE TRIBUNAL HAS CONFIRMED ALL THE ADDITIONS DESPITE THE ORDER OF TRIBUNAL BEING FILED BEFORE HIM. HE CA RRIED US THROUGH THE ORDER OF TRIBUNAL AND POINTED OUT THAT ONLY THE FOLLOWING AD DITIONS HAVE BEEN CONFIRMED BY THE TRIBUNAL : IT (SS) A NO.44/M/2010 LATE RAMESH B. SHARMA . 3 (1) ADDITION ON ACCOUNT OF SALE/PURCHASE OF JEWELLERY RS.1,33,316/- (2) ADDITIONS ON ACCOUNT OF AGRICULTURAL INCOME : A.Y. 1991-92 RS. 40,760/- A.Y. 1992-93 .. RS. 43,520/- A.Y. 1993-94 .. .. RS. 77,350/- HE FURTHER ARGUED THAT SHRI RAMESH B. SHARMA EXPIRE D SOMEWHERE IN 1994 AND HIS AFFAIRS WERE BEING LOOKED AFTER BY HIS WIFE WHO WAS NOT LITERATE AND DID NOT KNOW MUCH ABOUT INCOME-TAX AND THEREFORE A LENIENT VIEW MAY BE TAKEN AND PENALTY BE DELETED. 4. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT IN QUANTUM APPEAL THE TRIBUNAL HAS ALREADY ALLOWED CER TAIN RELIEF IN IT(SS)A NO.173/MUM/2004 AND ONLY ADDITIONS APPROXIMATELY OF RS. 3 LAKHS HAVE BEEN CONFIRMED BY THE TRIBUNAL. IT IS FURTHER NOTICED TH AT THE ADDITIONS CONFIRMED ARE ON ACCOUNT OF SOME LOOSE DOCUMENTS FOUND DURING THE SEARCH REGARDING SOME SALE/PURCHASE OF JEWELLERY FOR WHICH THE WIDOW OF LATE SHRI R.B. SHARMA MAY NOT BE AWARE. THE OTHER ITEM IS IN RESPECT OF AGRICULTU RAL INCOME WHICH IS BASICALLY EXEMPT BUT WAS REQUIRED TO BE REFLECTED IN THE RETU RN TECHNICALLY WHICH WAS NOT DONE. CONSIDERING THE FACT THAT LATE SHRI R.B. SHA RMA HAS ALREADY EXPIRED, WE ARE OF THE OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY AND ACCORDINGLY WE DELETE THE IMPUGNED PENALTY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. IT (SS) A NO.44/M/2010 LATE RAMESH B. SHARMA . 4 ORDER PRONOUNCED ON THE 31ST DAY OF JANUARY, 2012. SD/- SD/- (D.K. AGARWAL) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 31ST JANUARY , 2012. NG: COPY TO : 1. ASSESSEE. 2. DEPARTMENT. 3 CIT(A)-XVII,,MUMBAI. 4 CIT,MUMBAI CITY-XVII,MUMBAI. 5.DR,D BENCH,MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST. REGISTRAR, ITAT, MUMBAI. IT (SS) A NO.44/M/2010 LATE RAMESH B. SHARMA . 5 DETAILS DATE INITIALS DESIGNA TION 1. DRAFT DICTATED ON 25-01-2012 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 25-01-2012 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER