Marvel Associates, Visakhapatnam V. ACIT, Central Circle-2, Visakhapatnam

MA 21/VIZ/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0267 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 09-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CH SANJEEV
• Section: 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M.A .NO. 21 /VIZ/201 8 (ARISING OUT OF I.T.A.NO. 147 /VIZ/201 8 ) ( / ASSESSMENT YEAR: 20 13 - 1 4 ) M/S MARVEL ASSOCIATES FLANT NO.201, SARADA TOWERS FACOR LAYOUT RAMNAGAR VISAKHAPATNAM [PAN : AASFM1917A] VS. ACIT, CENTRAL CIRCLE - 2 VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI, AR / RESPONDENT BY : SHRI CH.SANJEEV, DR / DATE OF HEARING : 07 . 0 9 . 2018 / DATE OF PRONOUNCEMENT : 0 7 .0 9 .2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE ITAT IN I.T.A NO.147/VIZ/2017 AND CO NO.44/VIZ/2017 DATED 16.03.2018 FOR THE ASSESSMENT YEAR 2013 - 14. 2 M .A NO . 21 /VIZ/201 8 M/S MARVEL ASSOCIATES, VISAKHAPATNAM 2. IN THIS CASE, APPEAL ORDER WAS PRONOUNCED ON 16.03.2018. THE ISSUE INVOLVED IN THIS APPEAL IS LEVY OF PENALTY U/S 271 AAB OF INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS ACT), VIDE ORDER NO.147/VIZ/2017. WHILE DISPOSING THE APPEAL, THE ITAT HELD THAT THERE WAS N O UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH AND NO INCRIMINATING MATERIAL WAS FOUND, ACCORDINGLY SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND CANCELLED THE PENALTY LEVIED U/S 271AAB OF THE ACT. HOWEVER, WHILE DISPOSING THE CROSS OBJECTIONS, A MISTAKE WAS CREPT IN PARA NO.12 OF THE ORDER WITH REGARD TO THE NATURE OF UNDISCLOSED INCOME AND IT WAS M ENTIONED AS BANK DEPOSITS AS WELL AS THE GOLD JEWELLERY INSTEAD OF THE ADDITIONAL INCOME ADMITTED BY THE ASSESSEE. THE ASSESSEE FILED MISCELLANEOUS APPLICATION VIDE THEIR APPLICATION DATED 06.04.2018 WITH A REQUEST TO MAKE THE NECESSARY RECTIFICATION U/S 2 54 . FOR THE SAKE OF CLARITY, WE REPRODUCE PARA NO. 5 TO 8 OF THE MISCELLANEOUS APPLICATION WHICH READS AS UNDER : 5. THE HONBLE ITAT IN THE ORDER DT 16032018 HELD THAT THE INCOME ADMITTED U/S 13 2(4) WAS NOT IN THE NATURE OF UNDISCLOSED INCOME AND THUS HELD THAT THERE IS NO CASE FOR IMPOSING PENALTY U/S 271AAB OF THE ACT. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. HOWEVER, WHILE ADJUDICATING THE CROSS - OBJECTION FILED BY THE APPELLANT THE HONBLE ITAT HELD AS UNDER: 'IN VIEW OF OUR FINDINGS IN THE PRECEDING PARAGRAPHS, THE PENALTY LEVIED BY THE LOWER AUTHORITIES U/S 271MB OF THE ACT ON THE BANK DEPOSIT AS WELL AS THE GOLD AND JEWELLERY WAS SET ASIDE AND DISMISSED THE APPEAL OF THE REVENUE HENCE, THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED' 7. THE ISSUE CONSIDERED BY HON'BLE ITAT WHILE DISMISSING THE APPEAL OF 3 M .A NO . 21 /VIZ/201 8 M/S MARVEL ASSOCIATES, VISAKHAPATNAM THE REVENUE WAS THE LEVY OF PENALTY WITH REGARD TO ADDITIONAL INCOME OFFERED TOWARDS SALE OF BUILT UP SPACE. HOWEVER, WHILE DEALING WITH THE CROSS OBJECTION IN PARA NO.12 IT WAS MENTIONED PROBABLY DUE TO INADVERTENCE THAT THE PENALTY LEVIED U/S 271AAB ON BANK DEPOSIT AS WELL AS THE GOLD AND JEWEL LER)' IS SET ASIDE. 8. AS SUCH, THE ORDER DT 16.03.2018 OF THE HON'BLE ITAT, VISAKHAPATNAM IN CO NO. 44/V/2017 SUFFERS FROM MISTAKE APPARENT FROM THE RECORD. THEREFORE, IT IS RESPECTFULLY PRAYED THAT THE ORDER DT 16.03.2018 MAY KINDLY BE RECTIFIED BY MAKING SUITABLE MODIFICATIONS TO PARA NO.12 OF THE ORDER DT 1603.2018. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDER PASSED BY THE TRIBUNAL. WE FOUND THAT THERE IS A MISTAKE CREPT, IN THE ORDER IN PARA NO.12 AND THE SAME IS MODIFIED AS UNDER: IN VIEW OF OUR FINDINGS IN THE PRECEDING PARAGRAPHS, THE PENALTY LEVIED BY THE LOWER AUTHORITIES U/S 271AAB OF THE ACT WAS CANCELLED AND DISMISSED THE APPEAL OF THE REVENUE, HENCE, THE CROSS OB JECTION FILED BY THE ASSESSEE STANDS ALLOWED. 4. IN THE RESULT , MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 7 TH SEP, 201 8 . S D/ - S D/ - ( . ) ( . . ) ( V. DURGA RAO) ( D.S. SUNDER SINGH) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / VISAKHAPATNAM /DATED : 0 7 .09.2018 L.RAMA, SPS 4 M .A NO . 21 /VIZ/201 8 M/S MARVEL ASSOCIATES, VISAKHAPATNAM / COPY OF THE ORDER FORWARDED TO: - 1 . / THE ASSESSEE - M/S MARVEL ASSOCIATES, FLA T NO.201, SARADA TOWERS, FACOR LAYOUT, RAMNAGAR, VISAKHAPATNAM 2 . / THE REVENUE - ACIT, CENTRAL CIRCLE - 2, VISAKHAPATNAM 3 . THE PR. COMMISSIONER OF INCOME TAX (CENTRAL), VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX(APPEALS) - 3 , VI SAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6. / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM