CHHAYA P. GANGAR, V. CIT CEN-III,

MA 205/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3650 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Assessee Lawyers: V CHANDRASHEKHAR
• Keywords: Non passing of speaking order
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA/205/MUM/2015 (ARISING OUT OF ITA NO.4107/M/2013 DATE OF DECISION : 06.04.15) ASSESSMENT YEAR: 2007-08 SMT. CHHAYA P. GANGAR, C/311, SATYAM APARTMENTS, OPP. M.H.B. POLICE STATION, LINK ROAD, BORIVALI (W), PAN: AEHPG 9964J VS. COMMISSIONER OF INCOME-TAX (CENTRAL)-III, ROOM NO.109, FIRST FLOOR, AAYAKAR BHAVAN, MAHARISHI KARVE ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI V. CHANDRA SHEKHAR, A.R. REVENUE BY : SHRI G.N. MAKWANA, D.R. DATE OF HEARING : 09.10.2015 DATE OF PRONOUNCEMENT : 09.10.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOV ED BY THE ASSESSEE UNDER SECTION 254(2) OF THE ACT STATING THAT AN ERR OR APPARENT ON RECORD HAS OCCURRED IN THE ORDER DATED 06.04.15 OF THE TRIBUNA L PASSED IN ITA NO.4107/M/2013. IT HAS BEEN PLEADED IN THE APPLICA TION THAT THE TRIBUNAL HAS NOT RELIED UPON THE DECISION OF ANOTHER CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF GROUP CONCERN OF THE ASSESSEE NAMELY M/S. MAHAVIR BUILDERS VS. COMMISSIONER OF INCOME TAX, MUMBAI ITA NO.4136 & O THERS DECIDED VIDE ORDER DATED 26.11.2014 WHEREIN ON IDENTICAL FACTS, THE ISSUE OF REOPENING OF THE ASSESSMENT BY THE CIT UNDER SECTION 263 OF THE ACT WAS DECIDED IN FAVOUR OF THE ASSESSEE. IT HAS BEEN PLEADED THAT THE FACTS O F THE CASE OF THE ASSESSEE BEING MA/205/MUM/2015 (ARISING OUT OF ITA NO.4107/M/2013) SMT. CHHAYA P. GANGAR 2 SIMILAR IN NATURE, THE REOPENED PENALTY PROCEEDINGS UNDER SECTION 263 OF THE ACT WERE REQUIRED TO BE QUASHED IN THE LIGHT OF THE DECISION DATED 26.11.14 IN THE CASE OF M/S. MAHAVIR BUILDERS (SUPRA). 2. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ABOVE PLEADING OF THE APPLICANT DO NOT POINT TO ANY ERROR APPARENT ON RECORD OF THE ORDER DATED 06.04.15. THE LD. A.R. WAS ALSO AS KED TO SHOW ANY DEFECT IN THE FINDINGS ARRIVED AT BY THE TRIBUNAL IN THE IMPU GNED ORDER DATED 06.04.15, TO WHICH HE COULD NOT BRING ANY MATERIAL TO SHOW ANY D EFECT IN THE ORDER DATED 06.04.15. WE FIND THAT THE TRIBUNAL HAD NOTICED TH AT THE ORIGINAL ORDER OF THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE A O) DROPPING THE REOPENED PENALTY PROCEEDINGS AGAINST THE ASSESSEE WAS A NON SPEAKING ORDER. THE AO DROPPED THE PROCEEDINGS OBSERVING THAT IN VIEW OF T HE FACT THAT THE ASSESSEE HAD VOLUNTARILY DISCLOSED INCOME UNDER SECTION 132(4), HENCE AS PER THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. HAJI GAFFAR HAJI DADA CHINI REPORTED IN 169 ITR 33, PENALTY CANNOT BE LE VIED. HOWEVER, THE TRIBUNAL WHILE RELYING UPON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. VS. COMMISSIONER OF INC OME TAX -(2) CIVIL APPEAL NO.9772 OF 2013 DECIDED ON 30.10.13 HAS HELD THE REOPENING OF THE ASSESSMENT UNDER SECTION 263 BY THE LD. CIT(A) WAS VALID. WE FURTHER FIND THAT THE DECISION IN THE CASE OF M/S. MAHAVIR BUIL DERS IS A DETAILED DECISION WHEREIN LOT OF FACTS WHICH WERE BEFORE THE AO, HAVE BEEN ANALYZED AND THEREBY THE TRIBUNAL HELD THAT THE DROPPING OF PROC EEDINGS BY THE AO WAS AFTER DUE APPLICATION OF MIND. HOWEVER, IN THE IMPUGNED ORDER IT HAS CATEGORICALLY BEEN OBSERVED THAT THE ORDER OF THE AO WAS NON SPEA KING ORDER. THE REASONING GIVEN IN THE AOS ORDER, ON THE FACE OF IT, WAS NOT FOUND JUSTIFIABLE TO DROP THE PROCEEDINGS IN VIEW OF THE LAW LAID DOWN BY THE HON BLE SUPREME COURT IN THE MA/205/MUM/2015 (ARISING OUT OF ITA NO.4107/M/2013) SMT. CHHAYA P. GANGAR 3 CASE OF MAK DATA PVT. LTD. (SUPRA). WE, THEREFOR E, DO NOT FIND ANY DEFECT IN THE ORDER DATED 06.04.15 OF THIS TRIBUNAL. 3. HOWEVER, THE LD. A.R. OF THE ASSESSEE, AT THIS S TAGE, HAS BROUGHT OUR ATTENTION TO PECULIAR FACTS OF THE CASE THAT PURSUA NT TO THE ORDER OF THE LD. CIT UNDER SECTION 263 OF THE ACT, IN THE REOPENED PENAL TY PROCEEDINGS, THE AO AGAIN DROPPED THE PENALTY PROCEEDINGS. THIS FACT F INDS MENTION IN PARA 4 OF THE IMPUGNED ORDER DATED 06.04.15. UNDER SUCH CIRCUMST ANCES, SINCE IN THE REOPENED PROCEEDINGS UNDER SECTION 263 OF THE ACT, THE AO HAD DROPPED THE PENALTY, HENCE THERE REMAINED NO TAX OR OTHERWISE A DVERSE FACT ON THE ASSESSEE EVEN IF THE 263 ORDER WAS HELD TO BE VALID. VIRTUA LLY, THE QUESTION AS TO THE VALIDITY OF THE REOPENING UNDER SECTION 263 HAD REM AINED ACADEMIC IN NATURE. HOWEVER, SINCE THE ASSESSEE PREFERRED TO CONTEST TH E REVISION ORDER UNDER SECTION 263 OF THE ACT, UNDER SUCH CIRCUMSTANCES, T HE TRIBUNAL GAVE A FINDING ON THE ISSUE. HOWEVER, AS DISCUSSED ABOVE, THE ISS UE OF LEVY OF PENALTY HAD ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN T HE CONSEQUENTIAL PENALTY PROCEEDINGS UNDER SECTION 263. THE LD. A.R. OF THE ASSESSEE HAS STATED THAT IN CONSEQUENCE TO OUR ORDER DATED 06.04.15, THE AO HAS AGAIN ISSUED A NOTICE OF REOPENING OF THE PENALTY PROCEEDINGS. WE WOULD LIK E TO CLARIFY HERE THAT OUR HOLDING OF 263 ORDER VALID WAS LIMITED TO THAT PART ICULAR ORDER ONLY. IN CONSEQUENCE AND IN GIVING EFFECT TO THAT ORDER, THE AO HAS ALREADY DECIDED THE PENALTY PROCEEDINGS IN FAVOUR OF THE ASSESSEE. OUR ORDER DATED 06.04.15 IN NO MANNER CAN BE INTERPRETED AS TO GIVING OF ANY DIREC TIONS OR AUTHORITY TO THE AO TO REOPEN THE PENALTY PROCEEDINGS AGAIN, WHICH HAD ALREADY BEEN CONCLUDED EVEN IN THE REOPENED PENALTY PROCEEDINGS IN CONSEQU ENCE TO THE ORDER PASSED BY CIT UNDER SECTION 263. SINCE THE ORDER UNDER SE CTION 263 HAS ALREADY BEEN GIVEN EFFECT, HENCE UNDER SUCH CIRCUMSTANCES, HOLDI NG THE ORDER UNDER SECTION MA/205/MUM/2015 (ARISING OUT OF ITA NO.4107/M/2013) SMT. CHHAYA P. GANGAR 4 263 PASSED BY CIT TO BE VALID BY US WILL HAVE NO EF FECT ON THE ALREADY CONCLUDED PROCEEDINGS. 4. SUBJECT TO ABOVE OBSERVATIONS, THE APPLICATION O F THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2015. SD/- SD/- (SANJAY ARORA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED:15.10.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.