M/s. SMJ Housing, CHENNAI V. DDIT, CHENNAI

MA 269/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8559 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 10-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI IRS
• Assessee Lawyers: N VIJAY KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS ASWASTHY, JUDICIAL MEMBER M.A.NO. 269/MDS/2011 (IN I.T.A.NO. 2142/MDS/2010) ASSESSMENT YEAR : 2005-06 M/S. SMJ HOUSING, 6/1, NAHAR DRIVE, MAHARANI CHINNAMA ROAD, ALWARPET, CHENNAI 600 034. PAN ABBFS 1419 F VS. THE DEPUTY DIRECTOR OF INCOME-TAX, CENTRAL CIRCLE-II(1), CHENNAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI N. VIJAY KUMAR, CA RESPONDENT BY : SHRI T.N.BETGERI, IRS, JC IT DATE OF HEARING : 20 TH JULY, 2012 DATE OF PRONOUNCEMENT : 20 TH JULY, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E IN THE CONTEXT OF THE TRIBUNAL ORDER PASSED ON 2.6.2011 IN ITA NO.2142/MDS/2010 FOR THE ASSESSMENT YEAR 2005-06. THIS PETITION IS SEEKING RECTIFICATION OF THE MISTAKE AP PARENT ON THE SAID ORDER PASSED BY THE TRIBUNAL. THE ABOVE APPEAL WAS FILED BY THE MA 269/12 :- 2 -: REVENUE. THE REVENUE WAS CHALLENGING THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DELETING THE PE NALTY LEVIED ON THE ASSESSEE U/S.271(1)(C). THE PENALTY IS ` 1,67,37,400/-. THE TRIBUNAL SET ASIDE THE ORDER OF THE COMMISSIONE R OF INCOME- TAX(APPEALS) AND UPHELD THE LEVY OF PENALTY BY ALLO WING THE APPEAL FILED BY THE REVENUE. 2. IT IS IN THIS CONTEXT THAT THE ASSESSEE HAS FILE D RECTIFICATION PETITION ALLEGING THAT THE TRIBUNAL HAS PASSED THE ORDER WITHOUT CONSIDERING THE EXPLANATIONS OFFERED BY THE ASSESSE E. 3. WHEN THIS PETITION WAS CALLED ON FOR HEARING, AN ADJOURNMENT PETITION WAS PLACED BEFORE US. BUT ON GOING THROUGH THE RECTIFICATION PETITION, WE FIND THAT IT IS NOT MAINTAINABLE BEFORE THE TRIBUNAL, AS, IN FACT, THE PETITION IS REALLY S EEKING A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THEREFORE, WE REJ ECT THE ADJOURNMENT PETITION FILED BY THE ASSESSEE AND PROC EED TO DISPOSE OF THE MATTER. 4. IN THE PETITION, THE ASSESSEE HAS HIGHLIGHTED TH E FINDINGS ARRIVED AT BY THE TRIBUNAL UNDER SIX HEADINGS. THO SE FINDINGS STATED BY THE ASSESSEE ARE AS FOLLOWS : MA 269/12 :- 3 -: (1) THAT UPTO THE DATE OF SEARCH ADVANCE TAX WAS NO T PAID RELATING TO THE INCOME IN QUESTION. (2) THAT NO BOOKS OF ACCOUNT PERTAINING TO THE FIRM WERE FOUND AND NO RETURN OF INCOME HAD BEEN FILED. (3) THAT BOOKS OF ACCOUNT WERE FILED BEFORE THE DDI T ONLY DURING THE COURSE OF POST SEARCH INVESTIGATION. (4) THAT THE INCOME WHICH WAS OFFERED POST SEARCH W AS NEITHER REFLECTED IN THE BOOKS NOR INTIMATED TO THE CIT OR CCIT AS REQUIRED IN EXPLANATION 5 TO SEC.271(1)(C). (5) THAT BUT FOR THE SEARCH, THE ASSESSEE WOULD HAV E NEVER REVEALED THE INCOME TO THE DEPARTMENT. (6) THAT THE DEPARTMENT HAS RESORTED TO SEARCH IN T HE CASE OF PARTNERS AND SEIZED THE CASH AND ASSESSED IT AGAINS T FIRST ASSESSMENT TAX OF THE FIRM AND A SUM OF ` 67,67,403/- STILL REMAINED PAYABLE U/S.40A OF THE ACT. 5. AFTER NARRATING THE ABOVE FINDINGS OF THE TRIBUN AL, ONE AFTER THE OTHER, THE ASSESSEE IS FURNISHING ITS REPLIES T O EVERY SUCH FINDINGS AND FINALLY STATED THAT ALL THE ABOVE FIND INGS HAVE BEEN ARRIVED AT BY THE TRIBUNAL WITHOUT CONSIDERING THE EXPLANATIONS OF THE ASSESSEE IN A PROPER MANNER. MA 269/12 :- 4 -: 6. WE FIND THAT ALL THE ABOVE EXERCISES HAVE BEEN M ADE BY THE ASSESSEE-PETITIONER TO RE-ARGUE THE CASE OF PENALTY BEFORE THE TRIBUNAL. AT THE BEST, IT IS A REVIEW PETITION. 7. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE F IND THAT THIS MISCELLANEOUS PETITION IS NOT MAINTAINABLE. IT IS ACCORDINGLY REJECTED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 20 TH OF JULY, 2012 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 20 TH JULY, 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR