DCIT, Central Circle - 4(4), , Kolkata V. Jayashree Jayakar Mohanka, Legal Heir of Late Lalit Mohanka, Kolkata

MA 209/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6722 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 12-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 271(1)(c)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.209/KOL/2018 (ARISING OUT ITA NO.1346/KOL/2018) / ASSESSMENT YEAR:2007-08 DCIT, CENTRALCIRCLE-4(4), AAYAKAR BHAWAN, POORVA, 5 TH FLOOR, 110 SHANTI PALLY,KOLKATA-107 / V/S . JAYASHREE JAYAKAR MOHAKA, L/H LT. LALIT MOHANKA, MARUTI SADAN, 12, DOVER PARK, BALLYGUG, KOLKATA-19 [ PAN NO.AEAPM 5899 P ] (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) ITA NO.1346/KOL/2018 ASSESSMENT YEAR:2007-08 DCIT, CENTRALCIRCLE- 4(4), AAYAKAR BHAWAN, POORVA, 5 TH FLOOR, 110 SHANTI PALLY,KOLKATA- 107 / V/S . JAYASHREE JAYAKAR MOHAKA, L/H LT. LALIT MOHANKA, MARUTI SADAN, 12, DOVER PARK, BALLYGUG, KOLKATA-19 [ PAN NO.AEAPM 5899 P ] /APPELLANT .. ! /RESPONDENT ' / BY APPLICANT SHRI, SANKAR HALDER, ADDL. CIT-SR-DR ! ' / BY RESPONDENT SHRI DILIP S. DAMLE, AR ' / DATE OF HEARING 28-12-2018 ' / DATE OF PRONOUNCEMENT 23-01-2019 / ORDER PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES MISCELLANEOUS APPLICATION FILED U/S. 254(2) OF THE INCOME TAX APPELLATE TRIBUNAL ACT, 1963, IN SHORT THE ACT SEEKS TO RECALL OUR ORDER DATED 31.07.2018 DISMISSING THE MAIN APPEAL T O BE INVOLVING LOWER THAN MA NO209/KOL/2018 & ITA NO.1346/KOL/18 DCIT, C.C.-4(4) KOL. VS. JAYASHREE JAYAKAR MOHAN KA PA GE 2 THE PRESCRIBED TAX EFFECT OF 20 LAC AS PER THE CBDT LATEST CIRCULAR NO.3/2018 DATED11.07.2018. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE REVENUES SOLE ARGUMENT DURING THE COURSE O F HEARING IS THAT THE CBDTS LATTER CLARIFICATION DATED 28.08.2018 HAS MA DE IT CLEAR THAT ABOVE LOW TAX CIRCULAR DOES NOT APPLY WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME / UNDISCLOSED FOREIGN ASSETS (INCLUDING FINA NCIAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT AS PER CLAUSE 10(D) THEREOF. M R. DAMLE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE ASSE SSMENT IN QUESTION HAS NOT CULMINATED IN ANY SUCH ADDITION AND ALSO THAT THE M AIN CASE IS IN THE NATURE OF PENALTY APPEAL IN QUANTUM PROCEEDINGS. WE FIND NO M ERIT IN ASSESSEES TWIN ARGUMENTS AS THE FACT REMAINS THAT THE ABOVE STATED CLARIFICATION HAS DEFINED THE SCOPE OF LOW TAX CIRCULAR TO BE NOT APPLICABLE IN A CASE RELATING TO UNDISCLOSED FOREIGN BANK ACCOUNTS. IT HAS COME ON R ECORD THAT RESPONDENTS PREDECESSOR IN INTEREST / ORIGINAL ASSESSEE LATE SH RI LALIT MOHANKA HAD NOT BEEN DISCLOSED HIS FOREIGN BANK ACCOUNT IN QUESTION . WE THEREFORE TREATING OUR ORDER DISMISSING THE MAIN APPEAL AS INVOLVING LOW T AX EFFECT THAN 20 LAC TO BE AN ERROR APPARENT ON RECORD. THE SAME STANDS RECALL ED. THE REVENUES MAIN APPEAL ITA 1346/KOL/2018 IS RESTORED FOR HEARING AT ITS ORIGINAL NUMBER. 3. WE NOW ADVERT TO REVENUES MAIN APPEAL WITH BOTH PARTIES CONSENT. WE NOTICE THAT THE ORIGINAL ASSESSEE SHRI LATE LALIT M OHANKA HAD EXPIRED ON 07.10.2009 WHEREAS THE ASSESSMENT IN QUESTION STOOD FRAMED MUCH AFTER THAT ON 10.01.2015. HE HAD DEMISED MUCH BEFORE THE ASSES SMENT AS WELL AS THE IMPUGNED PENALTY LEVIED ON 18.03.2015 IN OTHER WORD S. WE QUOTE HON'BLE MADRAS HIGH COURTS DECISION IN CIT VS. LT.K.C. VERGHESE ( TCA NO.854 OF 2017 ) DATED 20.02.2018. {RELIED UPON IN CIT(A)S ORDER} THAT THE IMPUGNED PENALTY U/S. 271(1)(C) OF THE ACT COULD NOT BE LEVI ED ON A LEGAL REPRESENTATIVE. WE THEREFORE DECLINE THE REVENUES MAIN APPEAL ON T HIS COUNT ALONE. THIS REVENUES APPEAL ITA NO.1346/KOL/2018 IS DISMISSED. MA NO209/KOL/2018 & ITA NO.1346/KOL/18 DCIT, C.C.-4(4) KOL. VS. JAYASHREE JAYAKAR MOHAN KA PA GE 3 4. THIS REVENUES MISCELLANEOUS APPLICATION MA NO. 209/KOL/2018 IS ALLOWED AND ITS MAIN APPEAL ITA NO.1346/KOL/2018 IS DISMISSED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 23/01/2019 SD/- SD/- ( *) ( *) (DR. A.L. SAINI) (S.S. GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP ,- 23/01 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, C.C.4(4), AAYAKAR BHAWAN, POORVA 5 TH FL, 110, SHANTIPALLY, KOLKATA-107 2. ! /RESPONDENT-JAYASHREE JAYAKAR MOHANKA, L/H OF LT. L ALIT MOHANKA MARUTI SADAN, 12, DOVER PARK, BALLYGUNGE, KOLKAT A-19 3. 6 7 / CONCERNED CIT 4. 7- / CIT (A) 5. 6, 6, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ / 6,