ITO 12 (2)(2), Mumbai V. MICHELE BOUTIQUE, Mumbai

MA 194/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5482 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-12-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

आयकर अपील य अ धकरण म ु ंबई पीठ “ डी ” ी वकास अव थी, या यक सद य एवं ी राजेश क ु मार , लेखा सद य के सम IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ D ”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.194/MUM/2021 [ Arising out of ITA NO.1231/MUM/2019(A.Y.2008-09)] Income Tax Officer – 17(2)(1) Room No.115, 1 st Floor, Kautilya Bhavan, G. Block, BKC, Bandra (E), Mumbai 400 051 ...... ाथ /Applicant बनाम Vs. M/s. Michele Boutique, Shop No.21, Shah House, Mandlik Road, Colaba, Mumbai 400 009 PAN: AAGFM-6861-P ..... तवाद /Respondent ाथ वारा/ Applicant by : Shri B K Bagchi, तवाद वारा/Respondent by : None स ु नवाई क त थ/ Date of hearing : 26/11/2021 घोषणा क त थ/ Date of pronouncement : 28/12/2021 आदेश/ ORDER This Miscellaneous Application has been filed by the Revenue seeking rectification in the order of Tribunal dated 15/12/2020 in ITA No.1230 & 1231/Mum/2019 for assessment years 2006-07 and 2008-09, respectively. 2. Shri B. K.Bagchi representing the Department submitted that ITA No.1230 & 1231/Mum/2019 were filed by the Revenue. In para No.1, 2 & 4 of the order there has been inadvertent mistake in mentioning that these appeals were preferred by 2 MA NO.194/MUM/2021 the assessee. Thereafter, in para- 5 of the order the Tribunal under the presumption that the appeals have been filed by the assessee has observed that the order of CIT(A) is set-aside and the Assessing Officer is directed to delete the penalty. These observations made by the Tribunal are mistake apparent from record which requires rectification. 3. We have heard the submissions made by ld.Departmental Representative and have examined the records. These appeals were filed by the Revenue. We find that mistake has been crept in the order dated 15/12/2020, which requires rectification. In para 1,2 & 4 of the order it has been inadvertently mentioned that the appeals are preferred by the assessee. Therefore, Para 1 & 2 are rectified and would now read as under:- “The above titled appeals have been preferred by the Revenue against the order dated 07.12.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment years 2006-07 & 2008-09. ITA No.1230/M/2019 (A.Y. 2006-07) 2. The only issue raised by the Revenue is against the confirmation of penalty of Rs.99,983/- by Ld. CIT(A) as levied by the AO under section 271(1)(c) of the Act.” 4. In para 4 of the order it is mentioned that the appeal is by the assessee assailing penalty sustained by the CIT(A). Hence, the mistake in para 4 also needs to be rectified. Para 4 of the order after rectification would now read as under:- “4. The ld CIT(A) partly allowed appeal of the assessee by following order of the Tribunal wherein the addition was sustained to the tune of 30% of bogus purchases. Hence, the Revenue is in appeal before the Tribunal against penalty deleted to the extent of 70%.” 3 MA NO.194/MUM/2021 5. It is further observed that in para 5 of the order, after deciding the issue in favour of assessee, the Tribunal has observed that the order of CIT(A) is set aside and that the Assessing Officer is directed to delete the penalty. The concluding part of para- 5 thus, needs rectification. The concluding part of para- 5 of the order would now read as under: “5. ..............In our opinion, since this is a case of addition on estimation basis, no penalty can be levied for furnishing inaccurate particulars of income. No appeal by the assessee against the order of CIT(A) upholding penalty on 30% of the addition confirmed has been brought to the notice of Bench, the impugned order deleting 70% penalty is thus, upheld” 6. With the above mentioned corrections in the order of Tribunal dated 15/12/2020, the final outcome of the appeals as mentioned in para-8 of the order would remain unchanged. 7. In the result, Miscellaneous Application by the Revenue is allowed in the terms aforesaid. Order pronounced in the open Court on Tuesday the 28th day of December, 2021 Sd/- Sd/- (RAJESH KUMAR) (VIKAS AWASTHY) लेखा सद य/ACCOUNTANT MEMBER या यक सद य/JUDICIAL MEMBER म ु ंबई/ Mumbai, दनांक/Dated 28/12/2021 Vm, Sr. PS(O/S) 4 MA NO.194/MUM/2021 त ल प अ े षतCopy of the Order forwarded to : 1. अपीलाथ /The Appellant , 2. तवाद / The Respondent. 3. आयकर आय ु त(अ)/ The CIT(A)- 4. आयकर आय ु त CIT 5. वभागीय त न ध, आय.अपी.अ ध., म ु बंई/DR, ITAT, Mumbai 6. गाड फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai