The ITO, Ward-3(1)(4), Baroda V. Shri Dhanraj G. Manglani., Godhra

MA 162/AHD/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6985 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 06-11-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Search and seizure
• Section: 271(1)(c); 254(2); 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A NOS.162 TO 165/AHD/2020 IN ./ ITA NOS. 560 TO 563/AHD/2018 / ASSTT. YEARS: 2010-11 TO 2013-14 INCOME TAX OFFICER, WARD-3(1)(4), VADODARA. VS. SHRI DHANRAJ G. MANGLANI, 1215/1, OPP. SWAMINARAYAN COMPLEX, BAMROLI ROAD, GODHARA. PAN: AHRPM9553C M.A NOS.174 TO 179/AHD/2020 IN ./ ITA NOS. 587 TO 592/AHD/2018 / ASSTT. YEARS: 2008-09 TO 2013-14 INCOME TAX OFFICER, WARD-3(1)(4), VADODARA. VS. DHANWANTIBEN C. DARSHIYANI, 1, PARTH, VRUNDAVAN NAGAR SOCIETY, BAMROLI ROAD, GODHARA-389001. PAN: ADPPD9128C M.A NOS.162 TO 165/AHD/2020 IN (ITA NOS.560 TO563/AHD/2018) & OTHERS A.YS.2010-11 & 2013-14 2 M.A NOS.180 TO 186/AHD/2020 IN ./ ITA NOS. 593 TO 599/AHD/2018 / ASSTT. YEARS: 2007-08 TO 2013-14 INCOME TAX OFFICER, WARD-3(1)(4), VADODARA. VS. CHUNILAL P. DARSHIYANI (HUF), 69, VRUNDAVAN NAGAR SOCIETY, BAMROLI ROAD, GODHARA-389001. PAN: AADCG6787C (APPLICANT) (RESPONDENT) REVENUE BY : SHRI L.P. JAIN , SR.D .R ASSESSEE BY : SHRI KETAN H.SHAH WITH SHRI AMAN K. SHAH, A.RS /DATE OF HEARING : 06/08/2021 /DATE OF PRONOUNCEMENT: 17/08/2021 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY WAY OF ABOVE MISCELLANEOUS APPLICATIONS, REVENUE SEEKS TO RECALL ORDER OF THE TRIBUNAL DATED 18/12/2019 PASSED IN ITA NOS.560/AHD/2018 TO 563/AHD/2018, ITA NOS.587 TO 592/AHD/2018 AND ITA NOS.593 TO 599/AHD/2018 FOR THE ASSESSMENT YEAR AS MENTIONED IN THE CAUSE TITLE. THE TRIBUNAL HAS PASSED THE ABOVE ORDER IN A BUNCH OF CASES VIZ. MUKESH D. MANGALNI AND 25 OTHERS IN ITA NO.556/AHD/2018 FOR A.Y. 2011-12 AND OTHERS. M.A NOS.162 TO 165/AHD/2020 IN (ITA NOS.560 TO563/AHD/2018) & OTHERS A.YS.2010-11 & 2013-14 3 FIRST WE TAKE M.A NO.162 TO 165 IN (ITA NOS.560 TO 563/AHD/2018) FOR A.Y 2010-11 TO 2013-14 AS THE LEAD CASE FOR THE PURPOSE OF ADJUDICATION. 2. THE REVENUE IN THIS MISCELLANEOUS APPLICATION HAS REQUESTED TO RECALL THE ORDER PASSED BY THE ITAT IN ITA NO. 560-563/AHD/2018 VIDE ORDER DATED 18/12/2019 ON THE REASONING THAT THERE IS MISTAKE APPARENT FROM THE RECORD WITHIN THE PROVISION OF SECTION 254(2) OF THE ACT. 3. THE ASSESSEE IN THE M.A. SUBMITTED THAT THERE WAS A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT IN THE CASE OF DHANJIMAMA GROUP DATED 03/07/2012. AS A RESULT OF SEARCH THE ASSESSEE HAS ADMITTED ADDITIONAL INCOME OF RS.25,000/- IN THE STATEMENT FURNISHED U/S 132(4) OF THE ACT. ACCORDINGLY, THE AO INITIATED THE PENALTY PROCEEDINGS UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT, WHICH CAME TO BE CONFIRMED FOR RS. 7,760/- BEING 100% AMOUNT OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE BY AN ORDER DATED 08/09/2013. THE PENALTY WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT(A) VIDE ORDER DATED 22/01/2018 . 3.1 AS PER THE REVENUE THE ADDITIONAL INCOME DISCLOSED FOR RS.25,000/- WAS ON ACCOUNT OF INCRIMINATING DOCUMENTS/MATERIALS SEIZED DURING THE COURSE OF SEARCH WHICH WAS ALSO ADMITTED BY THE ASSESSEE IN THE STATEMENT FURNISHED U/S 132(4) OF THE ACT. ACCORDINGLY, THE PENALTY ON SUCH ADDITIONAL INCOME WAS LEVIED UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT 3.2 HOWEVER, THE ITAT IN HIS ORDER DELETED THE PENALTY BY OBSERVING THAT THERE CANNOT BE ANY PENALTY ON THE ADDITION MADE UNDER THE SEARCH PROCEEDINGS UNTIL AND UNLESS IT IS SUPPORTED/BASED ON THE INCRIMINATING DOCUMENTS. M.A NOS.162 TO 165/AHD/2020 IN (ITA NOS.560 TO563/AHD/2018) & OTHERS A.YS.2010-11 & 2013-14 4 3.3 THE FINDING OF THE ITAT IS INCORRECT FOR THE REASON THAT HAD THERE NOT BEEN ANY SEARCH U/S 132 OF THE ACT, THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE COULD HAVE BEEN ESCAPED FROM TAX. 4. IN VIEW OF THE ABOVE, THE LD. DR BEFORE US SUBMITTED THAT THE ORDER OF THE ITAT SUFFERS FROM THE ERROR APPARENT FROM THE RECORD AND THEREFORE SAME NEEDS TO BE RECALLED. 5. ON THE OTHER HAND, THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE ITAT. 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SCOPE OF PROVISION OF SUB SECTION 2 OF SECTION 254 OF THE ACT IS LIMITED TO THE EXTENT OF MISTAKE APPARENT FROM THE RECORD. HOWEVER, ON PERUSAL OF THE MA FILED BY THE REVENUE IT IS NOTICED THAT THERE IS NO ALLEGATION HIGHLIGHTING THE MISTAKE APPARENT FROM THE RECORD. THE SOLE BASIS OF MAKING THE REQUEST FOR RECALLING OF THE ORDER IS THAT PENALTY HAS BEEN DELETED BY THE ITAT WITHOUT APPRECIATING THE FACT THAT THE ADDITIONAL INCOME WOULD HAVE GONE TAX FREE, HAD THERE NOT BEEN ANY SEARCH U/S 132 OF THE ACT. AS SUCH , WE FIND NO ALLEGATION IN THE MA PREFERRED BY THE REVENUE THAT THERE WAS AN ERROR APPARENT FROM THE RECORD IN THE IMPUGNED ORDER OF THE ITAT. 6.1 WITHOUT PREJUDICE TO THE ABOVE, ASSUMING THE FINDINGS OF THE ITAT IS NOT CORRECT THAN IT WOULD NOT AMOUNT TO A MISTAKE APPARENT FROM RECORD WHICH COULD BE RECTIFIED UNDER THE PROVISION OF SECTION 254(2) OF THE ACT. IF THE DECISION OF THE ITAT IS WRONG THAN THE AGGRIEVED PARTIES CAN APPROACH TO THE HIGHER JUDICIAL FORUM I.E. JURISDICTIONAL HIGH COURT. BUT SUCH FINDINGS CANNOT BE RECTIFIED ON THE REASONING THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. IF WE DO SO IT WOULD AMOUNT TO REVIEW ITS OWN ORDER BY THE ITAT WHICH IS NOT PERMISSIBLE. M.A NOS.162 TO 165/AHD/2020 IN (ITA NOS.560 TO563/AHD/2018) & OTHERS A.YS.2010-11 & 2013-14 5 6.2 THE ITAT HAS PASSED THIS ORDER AFTER MAKING REFERENCE TO THE PROVISIONS OF EXPLANATION 5A TO THE SECTION 271(1)(C) OF THE ACT, AND AFTER RELYING ON THE ORDER OF ITAT IN THE CASE OF AJAY TRADER V/S DCIT REPORTED IN 81 TAXMAN 463. 6.3 IN VIEW OF THE ABOVE WE HOLD THAT THE ORDER OF THE ITAT DOES NOT SUFFER FROM ANY INFIRMITY AS ALLEGED BY THE REVENUE. HENCE ALL THE MAS FILED BY THE REVENUE ARE DISMISSED. 7. COMING TO THE MA NOS. 174 TO 179/AHD/2020 IN ITA NOS. 587 TO 592/AHD/2018 FOR THE AYS 2008-09 TO 2013-14 IN THE CASE OF DHANWANTIBEN C. DARSHIYANI 8. AT THE OUTSET WE NOTE THAT SIMILAR GROUND WAS RAISED BY THE REVENUE IN THE CASE OF SHRI DHANRAJ G. MANGLANI BEARING MA NO. 162 TO 165/AHD/2020 IN ITA NOS. 560 TO 563/AHD/2018 CORRESPONDING TO AYS 2010-11 TO 2013-14 WHICH HAS BEEN DECIDED IN FAVOUR OF ASSESSEE VIDE PARAGRAPH NO.6 OF THIS ORDER. FOR DETAILED DISCUSSION PLEASE REFER THE ABOVE MENTIONED PARAGRAPH NUMBER OF THIS ORDER. ACCORDINGLY, WE HOLD THAT FINDING GIVEN IN ABOVE PARAGRAPHS WITH REGARD TO MA NOS. 162 TO 165/AHD/2020 IN ITA NOS. 560 TO 563/AHD/2018 WILL MUTATIS MUTANDIS APPLY HERE IN THIS CASE ALSO. 8.1 IN THE RESULT, ALL THE MAS FILED BY REVENUE ARE DISMISSED. 9. COMING TO THE MA NOS. 180 TO 186/AHD/2020 IN ITA NOS. 593 TO 599/AHD/2018 FOR THE AYS 2008-09 TO 2013-14 IN THE CASE OF CHUNILAL P. DARSHIYANI (HUF) 10. AT THE OUTSET WE NOTE THAT SIMILAR GROUNDS WERE RAISED BY THE REVENUE IN THE CASE OF SHRI DHANRAJ G. MANGLANI BEARING MA NO. 162 TO 165/AHD/2020 IN ITA M.A NOS.162 TO 165/AHD/2020 IN (ITA NOS.560 TO563/AHD/2018) & OTHERS A.YS.2010-11 & 2013-14 6 NOS. 560 TO 563/AHD/2018 CORRESPONDING TO AYS 2010-11 TO 2013-14 WHICH HAS BEEN DECIDED IN FAVOUR OF ASSESSEE VIDE PARAGRAPH NO.6 OF THIS ORDER. FOR DETAILED DISCUSSION PLEASE REFER THE ABOVE MENTIONED PARAGRAPH NUMBER OF THIS ORDER. ACCORDINGLY, WE HOLD THAT FINDING GIVEN IN ABOVE PARAGRAPHS WITH REGARD TO MA NOS. 162 TO 165/AHD/2020 IN ITA NOS. 560 TO 563/AHD/2018 WILL MUTATIS MUTANDIS APPLY HERE IN THIS CASE ALSO. 10.1 IN THE RESULT, ALL THE MAS FILED BY REVENUE ARE DISMISSED. 11. IN THE COMBINED RESULTS, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 17/08/2021 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY ) AHMEDABAD; DATED 17/08/2021 MANISH