Soni Ashokkumar Maganlal, Ahmedabad V. The ACIT, Circle-12, Ahmedabad

MA 146/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6515 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER SL. NOS. MA NO(S) ASSTT. YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. MA NO.146/AHD/2019 (IN ITA NO.1053/AHD/2016) 2009-10 SONI ASHOK MAGANLAL, 29, NEW RANGBAUG SOCIETY NR. HATKESH MAHADEV KHOKHARA, MANINAGAR, AHMEDABAD-380 008. (PAN : ASJPS 1673 C) ACIT, CIRCLE 12, AHMEDABAD. 2. MA NO.147/AHD/2019 (IN ITA NO.1054/AHD/2016) 2009-10 SONI KAMLESHKUMAR MAGANLAL, (ADDRESS AS ABOVE) (PAN : AJNPS 6722 N) ACIT CIRCLE 12, AHMEDABAD. 3. MA NO.148/AHD/2019 (IN ITA NO.1055/AHD/2016) 2009-10 SONI HIRALAL MAGANLAL, 6 RAMAN VILLA APARTMENT, NR. ABHA LABORATORY, VALLABHWADI BUS STAND, BHAIRAVNATH ROAD, MANINAGAR, AHMEDABAD 380 008. (PAN : AJMPS 6723 P) ACIT, CIRLCE 12, AHMEDABAD. APPELLANT BY : SHRI S. N. DIVATIA, A.R. RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. DATE OF HEARING 0 5 .07.2019 DATE OF PRONOUNCEMENT 01.08.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE GROUP OF MISC. APPLICATIONS HAVE BEEN FILED AT THE INSTANCE OF THE ASSESSEE WHEREBY AND WHEREUNDER THE ORDER DATED 08.02.2019 P ASSED BY THE HONBLE TRIBUNAL HAS BEEN PRAYED TO BE RECALLED. - 2 - MA NOS.146, 147 & 148/AHD/2019 (IN ITA NOS .1053, 1054 & 1055/AHD/2016) ASST.YEAR 2009-10 2. THE MAIN CONTENTION OF THE ASSESSEE IS AS FOLLOW S: 5. THE APPLICANT SUBMITS WITH UTMOST RESPECT THAT MANY OF THE FINDINGS GIVEN BY THE APPELLANT TRIBUNAL AT PARA-6 OF THE ORDER AR E FACTUALLY ERRONEOUS SUCH AS: C) 'UPON THE DETECTION OF INTRODUCTION OF SHARE C APITAL WITH PREMIUM WITH M/S. CHOKSHI MAGANLAL JEWELERS PVT. LTD BY THE INVESTIGATION WING SUCH DISCLOSURE OF RS.1.60 CRS. WAS MADE BY HI M. THE APPLICANT SUBMITS THAT NO SUCH DETECTION WAS MADE BY THE INVE STIGATION WING AS EVIDENT FROM REPLY TO QUESTION NO.9 OF THE STATE MENT RECORDED ON 19.05.2010 OF SH. JITENDRA S SOHI (SEE PAGE 35-36 O F PAPER BOOK). D) '......DURING THE SURVEY MORE PARTICULARLY BEE N CONFRONTED WITH THE INCRIMINATING MATERIAL FOUND THEREIN'. THE APPLICAN T SUBMITS THAT THE PERUSAL OF THE STATEMENT OF THE DIRECTORS RECOR DED ON 19.05.2010 AS WELL AS THE ORDER OF ASSESSMENT U/S.143(3) R.W.S . 147 AND PENALTY ORDER U/S.271(1)(C) DO NOT HAVE GIVEN ANY SUCH FIND ING OF INCRIMINATING MATERIAL FOUND AND CONFRONTED BY THE INVESTIGATION WING DURING THE SURVEY. UNDER THIS CIRCUMSTANCE THE JUDGMENT PASSED IN THE MATTER OF MAK DATA PVT. LTD. IS NOT APPLICABLE AS THE POINTED OUT BY THE ASSESSE E. 3. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. IT APPEARS THAT THE ORIGINAL RETURN OF INCOME FILED ON 29.01.2010 FOR A.Y. 2009-10 DECLARING TOTAL INCOME AT RS.1,89,13,550/- IS ADMITTEDLY A BE LATED RETURN. SUBSEQUENTLY, A SURVEY ACTION WAS CONDUCTED BY THE INSPECTION WING OF AHME DABAD ON 18.05.2010 WHEREBY INTRODUCTION OF SHARE CAPITAL WITH PREMIUM IN M/S. CHOKSI MANGANLAL JEWELLERS PVT. LTD. BY THE DIRECTORS/SHARE HOLDERS OF THE COMPANY WAS D ETECTED. SUBSEQUENT THERETO, THE ASSESSEE ON 03.12.2010 FILED A REVISED RETURN OF IN COME WHICH WAS SUBMITTED BY THE ASSESSEE BY AND UNDER A LETTER DATED 07.10.2013 THE CONTENTION WHEREOF WAS VERIFIED. FROM THE STATEMENT OF TOTAL INCOME OF THE ASSESSEE, IT WAS FOUND THAT THE ASSESSEE SHOWN TOTAL INCOME AT RS.1,89,13,550/- IN THE REVISED RE TURN THUS INCLUDED AN AMOUNT OF RS.1.80 CRORES. HOWEVER, SUCH REVISED RETURN OF THE ASSESSE E WAS DULY ACCEPTED BY THE ASSESSING OFFICER THOUGH A BELATED RETURN WAS FILED INITIALLY ON 29.01.2010 FOR A.Y. 2009-10. IF THAT BE SO THEN THE LEARNED AO OUGHT TO HAVE POINTED OUT THE SAID DEFECT TO THE ASSESSEE - 3 - MA NOS.146, 147 & 148/AHD/2019 (IN ITA NOS .1053, 1054 & 1055/AHD/2016) ASST.YEAR 2009-10 INSTEAD OF ACCEPTING THE REVISED RETURN. IT IS RELE VANT TO MENTION THAT THE ASSESSMENT WAS FINALIZED UPON ASSESSING THE INCOME OF THE ASSESSEE AT RS.1,89,13,550/- I.E. WITHOUT MAKING ANY ADDITION TO THE INCOME OF THE ASSESSEE. HENCE, WE FIND THAT THE JUDGMENT PASSED IN THE MATTER OF MAK DATA PVT. LTD.-VS-CIT [ 2013] 358 ITR 593 (SC) WHICH WAS RELIED UPON BY THE LEARNED TRIBUNAL WHILE UPHOLDING THE PENALTY IS NOT APPLICABLE TO THE INSTANT CASE DUE TO DIFFERENT SET OF FACTS, MEANING THEREBY THAT THE FACTS IN THE PRESENT CASE BEFORE US IS DIFFERENT THAN THAT OF THE FACTS DEALT WITH IN THE MATTER OF MAK DATA PVT. LTD.-VS-CIT (SUPRA), HENCE, IN OUR CONSIDERED VIEW THE SAME IS AN ERROR APPARENT ON THE FACE OF THE RECORD. IF THAT BE SO THEN THE ORDER DA TED 08.02.2019 IS REQUIRED TO BE RECALLED. WE, THEREFORE, RECALL THE ORDER PASSED BY THE LEARN ED TRIBUNAL ON 08.02.2019. THE REGISTRY IS DIRECTED TO FIX THE MATTER FOR HEARING BEFORE REGULAR BENCH IN DUE COURSE UPON INTIMATION TO BOTH THE PARTIES. SINCE ALL THE MUTATIS MUTANDIS AND THE SAME SET OF FACTS IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE ORDER WILL APPLY MUTATIS MUTANDIS. 4. IN THE RESULT, ALL THE MISC. APPLICATIONS ARE AL LOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 0 1 / 0 8 /201 9 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 01/08/2019 PRITI YADAV, SR.PS - 4 - MA NOS.146, 147 & 148/AHD/2019 (IN ITA NOS .1053, 1054 & 1055/AHD/2016) ASST.YEAR 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 25.07.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING 29.07.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 29.07.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER