DCIT CIR 2, KALYAN V. DILIP VISHINDAS BADLANI, ULHASNAGAR

ITSSA 50/MUM/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9367 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-06-2013
• Assessment Year: misc
• Appeal Filed On: 02-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI . , ! ! ! ! . ' ' ' ' ! !! ! , $ $ $ $ %&' %&' %&' %&' % % % % BEFORE SHRI D. MANMOHAN, VICE PRESIDENT , AND , SHRI D.KARUNAKARA RAO, AM % %% % . : 50 / / 2010 ( ) !*) A.Y 1990-2000 IT( SS)NO. 50/MUM/2010 (ASSESSM ENT YEAR(BLOCK PERIOD- 1990-2000) DCIT, WARD - 2(1), 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN-421301 VS SHRI DILIP VISHINDAS BADLANI PROP. M/S. VISHINDAS VATUMAL BADLANI, SHOP NO. 584, ZAVERI BAZAR, SIRU CHOWK, ULHASNAGAR-421002 PAN :ABEPB7685D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAVIN KUMAR RESPONDENT BY : NONE % ! + ,$ /DATE OF HEARING : 10-06-2013 -* + ,$ /DATE OF PRONOUNCEMENT : 10-06-2013 & && & . .. . O R D E R . ' ' ' ' ! !! ! , $ $ $ $ %&' %&' %&' %&' PER D.KARUNAKARA RAO, AM THE DEPARTMENT HAS FILED THIS APPEAL FOR BLOCK PERI OD 1990-2000 AGAINST THE ORDER DATED 27.02.2009 OF LD. CIT(A)-2, MUMBAI ON FOLLOWI NG GROUNDS. 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1.THE CIT (A) ERRED IN LAW AS WELL AS O N FACTS OF THE CASE IN DELETING THE PENALTY OF RS. 2,07,110/- LEVIED U/S 158BFA(2) OF I.T ACT F OR THE BLOCK PERIOD 1-04-1990 TO 20-10-2000 WITHOUT APPRECIATING THAT PENALTY WAS IMPOSED ON UNDISCLOSED 2 IT(SS) 50/M/2010 SHRI DILIP VISHINDAS BADLANI INCOME ASSESSED BASED ON POSITIVE FINDINGS SUPPORTE D BY CONCRETE EVIDENCE GATHERED DURING SEARCH ACTION AND FURTHER THE UNDIS CLOSED INCOME ASSESSED WAS SUSTAINED BY CIT(A) AS WELL AS BY ITAT CONSIDERING THE EVIDENCE ON RECORD. 2.THE CIT (A) ERRED IN LAW AS WELL AS ON FACTS OF T HE CASE IN TAKING A CONTRARY VIEW DURING THE APPELLATE PROCEEDINGS FOR PENALTY W ITHOUT BRINGING ANY NEW FACTS NOT PRESENTED BEFORE ASSESSING OFFICER AND APPELLAT E AUTHORITY IN QUANTUM APPEAL AND DELETING THE PENALTY HOLDING THAT PENALT Y WAS LEVIED ON ESTIMATE INCOME NOT SUPPORT BY DOCUMENTARY EVIDENCE. 3. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE B Y PRAD. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICAT ION FOR ADJOURNMENT HAS BEEN RECEIVED IN THE OFFICE OF THE TRIBUNAL. THEREFORE, WE PROCEED T O DECIDE THIS APPEAL OF THE REVENUE CONSIDERING THE PRELIMINARY ISSUE RELATING TO TAX E FFECT. THE TAX EFFECT IN THIS APPEAL IS ONLY RS. 2,07,110/-. 4. AT THE OUTSET, IT IS OBSERVED THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED MONETARY LIMITS OF RS. 3 LAKHS AND AS SUCH FILING O F APPEAL BY THE DEPARTMENT TO ITAT IS CONTRARY TO THE INSTRUCTION NO.3 OF 2011 DT. 9.2.20 11 ISSUED BY CBDT UNLESS IT FALLS IN THE EXCEPTION MENTIONED IN PARA 8 THEREOF, LD. D.R. HAS NOT DISPUTED THE ABOVE FACTS AND FAIRLY MENTIONED THAT THE APPEAL DOES NOT FALL IN THE EXCE PTION MENTIONED IN PARA 8 OF THE ABOVE INSTRUCTION OF CBDT. 5. WE HAVE CONSIDERED CBDT INSTRUCTION NO.3 OF 2011 ISSUED ON 9.2.2011. THE RELEVANT CIRCULAR ISSUED BY CBDT. FOLLOWING THIS CIRCULAR, T HE ITAT, MUMBAI BENCHES HAVE DISMISSED THE APPEALS FILED BY THE REVENUE WHEREIN THE TAX EFFECT IS LESS THAN RS. 3 LAKHS. RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THE ITAT MUMBAI BENCHES AND TO MAINTAIN THE CONSISTENCY WITH THE ORDERS OF THE TRIBUNAL, WE DISMISSED THE APPEAL OF REVENUE BEING BELOW THE PRESCRIBED MONETARY LIMITS OF RS. 3 LAKHS 7. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. 3 IT(SS) 50/M/2010 SHRI DILIP VISHINDAS BADLANI ORDER PRONOUNCED ON THE DAY 10 TH JUNE, 2013. SD/- SD/- (D.MANMOHAN) (D.KARUNAKAR RAO) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI : 10 TH JUNE, 2013 PS.- PRAMOD /(, /COPY TO:- 1) 01 /THE APPELLANT. 2) /201 /THE RESPONDENT. 3) 3 ( ) - MUMBAI / THE CIT (A)-2 , MUMBAI. 4) 3 , MUMBAI /THE CIT . , MUMBAI, 5) 4!56 /(,( , , / THE D.R. D BENCH, MUMBAI. 6) 6 ) 7 COPY TO GUARD FILE. &. % / BY ORDER / / TRUE COPY / / / % 8 , DY./ASSTT. REGISTRAR I.T.A.T., MUMBAI