M/s. M. Waseeq Cafetaria, Raigad V. Income tax Officer, Panvel

MA 20/PUN/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5492 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY , JM M A. NO . 20 /PUN/2017 (ARISING OUT OF ITA NO. 08 /PUN/201 4 ) / ASSESSMENT YEAR : 200 5 - 06 M/S. M. WASEEQ CAFETARIA, HOUSE NO. 92, PATEL MOHALLA, PANVEL, TAL : PANVEL, RAIGAD, PIN - 410 206 PAN : AALFM 3549F ....... / APPELLANT / V/S. INCOME - TAX OFFICER, WARD - 2, PANVEL / RESPONDENT ASSESSEE BY : SHRI PRAKASH PANDIT REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 01.09.2017 / DATE OF PRONOUNCEMENT : 20 .09.2017 / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS PETITION U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) HAS BEEN FILED BY THE ASSESSEE /APPLICANT FOR RECALLING THE ORDER OF TRIBUNAL DATED 01.03.2016 PASSED IN ITA NO. 08/PN/2014 FOR ASSESSMENT YEAR 2005 - 06. 2 M.A. NO. 20/PUN/2017 A.Y. 2005 - 06 2. THE CONTENTS OF THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE READ AS UNDER: THE FACTS FOR FILING THE THIS MISCELLANEOUS APPLICATION ARE AS UNDER : ( I ) THE RETURN OF INCOME UNDER SECTION 139(1) WAS DUE ON OR BEFORE 30 TH JULY 2005. ( II ) THE PERIOD SPECIFIED UNDER SUB SECTION 1 OF SECTION 153 WAS 31/12/2007. ( III ) SURVEY UNDER SECTION 133A WAS CARRIED OUT ON 3/3/2008 AND 4/3/2008. ( IV ) NOTICE UNDER SECTION 148 FOR YEAR UNDER APPEAL ALONG WITH A.Y.2006 - 07, 2007 - 08 WAS ISSUED ON 4/3/2008. HOWEVER NO SEPARATE REASONS FOR EACH YEAR WERE RECORDED BY THE A.O. AS CONTEMPLATED BY SECTION 148(2). ( V ) THE A.O IN HIS SHOW CAUSE NOTICE DATED 18/11/2008 WANTED TO TAX CAPITAL GAIN OF RS.32,09,950/ - WHICH WAS ALREADY TAXED IN A.Y. 2004 - 05. ( VI ) REASONS RECORDED AND THE ASSESSMENT ORDER FOR A. Y . 2005 - 06 CONFIRM THAT SALE OF THE PLOT AT ROAD PAL I WHICH WAS SOLD BY THE ASSESSEE WAS ASSESSABLE IN THE A . Y. 2006 - 07. HOWEVER, THE ASSESSEE DISCLOSED THE SAID CAPITAL GAIN OF RS. 1,24,20,250/ - IN A. Y. 2005 - 06 BY FILING RETURN OF INCOME ON 26 / 11 / 2008. ALONG WITH THE SAID RETURN OF INCOME REASONS FOR LATE FIL ING OF THE WITH THE SAID RETURN OF INCOME REASONS FOR LATE FIL ING OF THE RETURN WERE SUBMITTED VIDE LETTER 26 TH NOVEMBER 2008. ( VII ) THE AO ACCEPTED SHORT TERM CAPITAL GAIN OF RS. 1,24,20,250/ - HOWEVER WHILE PASSING THE ORDER THE A. O. PASSED PROTECTIVE ASSESSMENT IN RESPECT OF SHORT TERM CAPITAL GAIN OF RS. 32,09, 950/ - IN VIEW OF ASSESSMENT ORDER FOR A. Y. 2004 - 05. ( VIII ) WHILE PASSING THE ASSESSMENT ORDER THE A. O. INITIATED PENALTY PROCEEDINGS U/S . 271(1)(C) OF THE ACT IN RESPECT OF THE INCOME OF RS. 1,24,20, 250/ - . ( IX ) THE ASSESSEE PREFERRED APPEAL TO CIT(A) AGAINST THE ADDITION OF RS. 32,09, 950/ - . ( X ) THE CIT(A) DELETED THE SAID ADDITION IN VIEW OF HIS OWN DECISION FOR A . Y . 2004 - 05 BECAUSE ACCORDING TO THE CIT(A) THE SAID CAPITAL GAIN PERTAINS TO A . Y. 2004 - 05. ( XI ) THE A.O . GAVE FRESH SHOW CAUSE NOTICE FOR A . Y.2004 - 05 AND A . Y . 2005 - 06 AS THE ASSESSMENT ORDER AS WELL AS SHOW CAUSE NOTICE WAS SILENT ABOUT INVOKING EXPLANATION TO SECTION 271 (1 )(C), THE ASSESSEE GAVE REPLY IN RESPECT OF SHORT TERM CAPITAL GAIN OF RS. 32,09,950/ - . ( XII ) THE A O. LEVIED A PENALTY OF RS.11, 74,601 / - FOR A . Y. 2005 - 06 VIDE HIS ORDER DATED 24/03/2011 ON THE SAME DATE THE A . O. ALSO LEVIED A PENALTY FOR A Y. 2004 - 05 ON THE SAME INCOME. 3 M.A. NO. 20/PUN/2017 A.Y. 2005 - 06 ( XIII ) BEFORE CIT(A) THE ASSESSEES SUBMISSIONS WERE TWO FOLD. THE FIRST WAS IN RESPECT OF CONCEALED INCOME OF RS. 32,09,950/ - . IN THE SAID SUBMISSION IT WAS PLEADED THAT PENALTY OF RS.11,74,601/ - REQUIRES TO BE DELETED AS THE ADDITION OF RS.32,09,950/ - WAS DELET ED BY CIT(A). ALTERNATELY IT WAS SUBMITTED THAT ASSUMING THE PENALTY IS LEVIED BY INVOKING EXPLANATION 3, PENALTY CANNOT BE LEVIED AS ALL THE THREE CONDITIONS OF EXPLANATION 3 ARE NOT SATISFIED. ( XIV ) CIT(A) E NHANCED THE SAID PENALTY TO RS. 45,43,069/ - ON THE GROUND THAT CONCEALMENT OF THE INCOME IS IN RESPECT RS. 1,24,20,250/ - AND ON THE GROUND THAT PENALTY IS TO BE LEVIED UNDER EXPLANATION 1 SECTION 271(1) (C) AND THE ASSESSEE HAS NOT GIVEN EXPLANATION, EXPLANATION 1 IS APPLICABLE. IN VIEW OF THE ABOVE FACTS, IT IS SUBMITTED THAT YOUR HONORS APPRECIATION OF FACTS IN PARA 6 AND CONCLUSION IN PARA 7 ARE CONTRARY TO THE FACTS AND SUBMISSIONS ON RECORD. SHRI PRAKASH PANDIT APPEARING ON BEHALF OF THE ASSESSEE REITERATED THE CONTENTS OF THE MI SCELLANEOUS PETITION. 3. SHRI AJAY MODI REPRESENTING THE DEPARTMENT SUBMITTED THAT THE TRI BUNAL IN PARA 7 OF THE ORDER HAS MADE CERTAIN OBSERVATIONS WHILE RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER. THE OBSERVATIONS RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER. THE OBSERVATIONS MADE BY THE TRIBUNAL AR E CONTRARY TO THE FACTS AND HENCE , THE ORDER OF TRIBUNAL REQUIRES RECTIFICATION. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY R EPRESENTATIVES OF BOTH THE SIDES. BOTH SIDES ARE UNANIMOUS IN SUBMITTING THAT THERE IS MISTAKE IN RECORDING F ACTS IN PARA 7 OF THE ORDER OF TRIBUNAL. SINCE FACTS HAVE BEEN WR ONGLY INCORPORATED IN THE ORDER, THE MISTAKE IS APPARENT. THE ORDER OF TRIBUNAL REQUIRES RECTIFICATION AND ACCORDINGLY, THE ORDER OF TRIBUNAL DATED 01.03.2016 IS HEREBY RECALLED. 5. THE REGISTRY IS DIRECTED TO LIST THE APPEAL FOR HEARING ON 06.11.2017 . SINCE , THE DATE OF LISTING OF APPEAL HAS BEEN INFORMED TO BOT H SIDES, I S SUANCE OF SEPARATE NOTICE OF APPEAL TO PARTIES IS DISPENSED WITH. 4 M.A. NO. 20/PUN/2017 A.Y. 2005 - 06 6 . IN THE RESULT, MISCELLANEOUS A PPLICATION IS ALLOWED IN THE AFORESAID TERMS. ORDER PRONOUNCED ON WEDNESDAY , THE 20TH DAY OF SEPTEMBER, 2017. SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 20 TH SEPTEMBER, 2017. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - I, THANE 4. THE CIT - II, THANE. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, /PRIVATE SECRETARY , / ITAT, PUNE .