M/s Koochie Play Systems Private Limited , Bangalore V. Deputy Commissioner of Income Tax Circle-4(1)(1), Bangalore

MA 28/BANG/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0483 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 10-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: SANDEEP HUILGO
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER [ M P NO. 28 /B ANG /20 20 (IN ITA NO.2828/BANG/2018)] (ASSESSMENT YEAR: 20 1 3 - 1 4 ) M/S. KOOCHIE PLAY SYSTEMS PVT. LTD., NO. 23, 3 RD FLOOR, FARAH WINSFORD, 133, INFANTRY ROAD, BENGALURU 560 001. PAN : AADCK 8647 F APPLICANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 4(1)(1), DARUSSALAM BUILDING, QUEENS ROAD, SHIVAJI NAGAR, BENGALURU 560 001. RESPONDENT APPLICANT BY : SHRI. SANDEEP HUILGO, ADVOCATE REVENUE BY : SMT. R. PREMI, J C IT DATE OF HEARING : 12 / 0 6 /20 20 DATE OF PRONOUNCEMENT : 19 / 0 6 /20 20 O R D E R PER A. K. GARODIA, AM: THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE ASSESSEE AND IT IS CONTENDED IN THIS MP THAT THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT, 1961. 2. IN THE COURSE OF HEARING, THE BENCH POINTED OUT THAT THE MP FILED BY THE ASSESSEE IS A LENGTHY MP CONTAINING 21 PARAS IN 9 PAGES. THE BENCH WANTED TO SEE EXACT PARA OF THE MP IN WHICH THE ASSESSEE HAS POINTED OUT THE ALLEGED APPARENT MISTAKE IN THE MP NO. 28/BANG/2020 (IN ITA NO.2828/BANG/2018) PAGE 2 OF 6 TRIBUNAL ORDER. IN REPLY, IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE THAT PARA 17 OF THE MP IS RELEVANT IN THIS REGARD. HE ALSO POINTED OUT THAT THE ISSUE IN DISPUTE WAS DECIDED BY THE TRIBUNAL AS PER PARA 7 ON PAGES 9 AND 10 OF THE IMPUGNED TRIBUNAL ORDER. AS AGAINST THIS, LEARNED DR OF THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA 17 OF THE MP TO TAKE NOTE OF THE ALLEGED APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. THIS PARA READS AS UNDER: 17. THE APPLICANT MOST HUMBLY SUBMITS THAT GIVEN THAT THIS HON'BLE TRIBUNAL WAS COGNIZANT OF THE FACT THAT DEEPAK KALRO HAD APPLIED FOR GRANT OF THE SAID CERTIFICATE OF DECLARATION AS ON THE DATE OF THE HEARING OF THE APPEAL AND THAT THE NON-ISSUANCE OF THE SAID CERTIFICATE BY THEN WAS NOT ATTRIBUTABLE TO THE APPLICANT IN ANY MANNER WHATSOEVER, THE NON-REMISSION OF THE SAID ISSUE TO THE FILE OF THE CIT(A) FOR CONSIDERATION OF THE CERTIFICATE THAT WOULD SUBSEQUENTLY BE OBTAINED BY DEEPAK KALRO AND THAT WOULD THUS BE CAPABLE OF BEING BROUGHT ON RECORD BY THE APPLICANT, ESPECIALLY GIVEN THAT ONE ISSUE WAS IN ANY EVENT BEING REMANDED TO THE FILE OF THE CIT(A), CONSTITUTES A MISTAKE APPARENT FROM THE RECORD WHICH OUGHT TO BE RECTIFIED BY THIS HON'BLE TRIBUNAL IN EXERCISE OF THE POWERS VESTED IN IT UNDER SECTION 254(2) OF THE ACT. THUS, THE APPLICANT MOST HUMBLY PRAYS THAT THIS HON'BLE TRIBUNAL MAY BE PLEASED TO PASS ORDERS ALLOWING THE PRESENT APPLICATION UNDER SECTION 254(2) OF THE ACT AND THEREBY GRANTING RECTIFICATION OF THE AFORESAID MISTAKE APPARENT FROM THE RECORD. 4. WE ALSO REPRODUCE PARA 7 OF THE IMPUGNED TRIBUNAL ORDER WHICH READS AS UNDER: MP NO. 28/BANG/2020 (IN ITA NO.2828/BANG/2018) PAGE 3 OF 6 7. NOW WE FIND THAT THE ISSUE REGARDING AMOUNT RECEIVED OF RS. 1.5 CRORE FROM DEEPAK PAHLAJRAI KALRO WAS DECIDED BY ID. CIT(A) AS PER PARA NOS. 24 AND 25 OF HIS ORDER. IN PARA NO. 24 OF HIS ORDER, IT IS NOTED BY ID. CIT(A) THAT FINAL CERTIFICATE UNDER THE INCOME DECLARATION SCHEME RULES 2016 HAS NOT BEEN PRODUCED BEFORE HIM. ON THIS BASIS, HE HELD THAT THE IMMUNITY UNDER THE IDS SCHEME 2016 IS NOT AVAILABLE TO SHRI DEEPAK KALRO. BEFORE US, ON PAGES 101 TO 110 IS THE COPY OF DECLARATION MADE BY THE ASSESSEE ON 30.09.2010 UNDER INCOME DECLARATION SCHEME RULES 2016. AS PER THIS DECLARATION SCHEDULE 1, THIS PERSON DEEPAK P KALRO HAS DISCLOSED AN AMOUNT OF RS. 1,54,29,659/- AND AS PER YEARWISE DETAILS AVAILABLE ON PAGE NO. 106 OF THE PAPER BOOK, THIS AMOUNT OF RS. 1,54,29,659/- INCLUDES AN AMOUNT OF RS. 50,69,651/- FOR ASSESSMENT YEAR 2014-15. THE YEAR INVOLVED BEFORE US IS ASSESSMENT YEAR 2013-14 AND THE SHARES WERE ALLOTTED BY THE ASSESSEE TO SHRI DEEPAK P KALRO ON 25.03.2013 AND THEREFORE, THE AMOUNT WAS RECEIVED BY THE ASSESSEE COMPANY FROM SHRI DEEPAK P KALRO PRIOR TO 25.03.2013 AND HENCE, ANY AMOUNT DECLARED FOR ASSESSMENT YEAR 2014-15 CANNOT BE CONSIDERED AT ALL FOR THE PURPOSE OF EXAMINING THE SOURCE OF MONEY RECEIVED BY THE ASSESSEE COMPANY PRIOR TO 25.03.2013. MOREOVER, AS PER PARA NO. 9 OF THE SAID INCOME DECLARATION SCHEME RULES 2016 AVAILABLE ON PAGE NO 105 OF THE PAPER BOOK, IT WAS REQUIRED TO POINT OUT AS TO WHETHER ANY INCOME HAD EVER BEEN CREDITED IN BANK ACCOUNT ALONG WITH BALANCE IN THE SAID ACCOUNT AS ON 01.06.2016 IF ANY. THERE THE ASSESSEE HAS STATED THAT THE DETAILS ARE GIVEN IN SCHEDULE 2 AND SUCH SCHEDULE 2 IS AVAILABLE ON PAGE NO. 107 OF THE PAPER BOOK AND IN THE SAID SCHEDULE, IT IS STATED THAT THE BALANCE AVAILABLE AS ON 01.06.2016 IS RS. 40,48,088/- IN KOTAK BANK APART FROM SOME. SMALL BALANCES IN SOME OTHER BANKS. IN VIEW OF THESE FACTS, THIS EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE THAT THE CREDIT WORTHINESS IN THE HANDS OF SHRI DEEPAK P KALRO REGARDING HIS INVESTMENT IN ASSESSEE COMPANY TO THE EXTENT OF RS. 1.50 CRORE IS EXPLAINED. THIS IS ALSO SEEN THAT ON PAGE NO. 108 OF THE PAPER BOOK IS FORM 2 WHICH IS ACKNOWLEDGMENT OF DECLARATION UNDER SECTION 183 OF THE FINANCE ACT. 2016 IN RESPECT OF THE INCOME DECLARATION SCHEME, 2016 AND AS PER THE SAME, TAX OF RS. 46,28,896/- IS MP NO. 28/BANG/2020 (IN ITA NO.2828/BANG/2018) PAGE 4 OF 6 PAYABLE AND IN ADDITION TO THAT, SURCHARGE PAYABLE IS RS. 11,57,225/- AND PENALTY PAYABLE IS ALSO THE SAME AMOUNT I.E. 11,57,225/-, TOTAL TAX, SURCHARGE AND PENALTY AMOUNTS TO RS. 69,43,346/-. AS PER PAGE NOS. 109 & 110 OF THE PAPER BOOK, THERE IS EVIDENCE REGARDING PAYMENT OF RS 11,07,888/- ONLY. ON PAGE NO. 110 OF THE PAPER BOOK, IT IS NOTED THAT THIS PAYMENT IS FOR ASSESSMENT YEAR 2017-18. HENCE, WE FIND THAT NEITHER THE ASSESSEE HAS PRODUCED ANY EVIDENCE REGARDING PAYMENT OF TAX BY SHRI DEEPAK P KALRO IN RESPECT OF AMOUNT DECLARED BY HIM IN INCOME DECLARATION SCHEME RULES. 2016 AND NOR THE ASSESSEE HAS BROUGHT ON RECORD THE REQUIRED CERTIFICATE ISSUED UNDER THE INCOME DECLARATION SCHEME RULES. 2016. SUCH CERTIFICATE IS NOT EVEN BROUGHT ON RECORD BEFORE US ALSO. UNDER THESE FACTS, WE FIND NO REASON TO INTERFERE IN THE ORDER OF ID. CIT(A) ON THIS ISSUE I.E. REGARDING NOT ACCEPTING THIS EXPLANATION OF THE ASSESSEE THAT CREDIT WORTHINESS OF RS. 1.50 CRORE IN THE HANDS OF SHRI DEEPAK P KALRO HAS BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE. WE THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF ID. CIT(A) ON THIS PART OF THE GROUND. 5. WE FIND THAT IN PARA 7 OF THE IMPUGNED TRIBUNAL ORDER AS REPRODUCED ABOVE, IT IS NOTED BY THE TRIBUNAL THAT AS PER THIS DECLARATION IN SCHEDULE 1, THIS PERSON SHRI. DEEPAK P KALRO HAD DISCLOSED AN AMOUNT OF RS.1,54,29,659/- AND AS PER YEAR WISE DETAILS AVAILABLE ON PAGE 106 OF THE PAPER BOOK, THIS AMOUNT OF RS.1,54,29,659/- INCLUDES AN AMOUNT OF RS.50,69,651/- FOR ASSESSMENT YEAR 2014-15. THE YEAR INVOLVED BEFORE TRIBUNAL IS ASSESSMENT YEAR 2013-14 AND THE SHARES WERE ALLOTTED BY THE ASSESSEE TO SHRI. DEEPAK P KALRO ON 25.03.2013 AND THEREFORE THE AMOUNT WAS RECEIVED BY THE ASSESSEE COMPANY FROM SHRI. DEEPAK P KALRO PRIOR TO 25.03.2013 AND HENCE, ANY AMOUNT DECLARED FOR MP NO. 28/BANG/2020 (IN ITA NO.2828/BANG/2018) PAGE 5 OF 6 ASSESSMENT YEAR 2014-15 CANNOT BE CONSIDERED AT ALL FOR THE PURPOSE OF EXAMINING THE SOURCE OF MONEY RECEIVED BY THE ASSESSEE COMPANY PRIOR TO 25.03.2013. THE TRIBUNAL HAS FURTHER NOTED THAT AS PER PARA 9 OF THE SAID INCOME DECLARATION SCHEME RULES, 2016 AVAILABLE ON PAGE 105 OF THE PAPER BOOK, IT WAS REQUIRED TO POINT OUT AS TO WHETHER ANY INCOME HAD EVER BEEN CREDITED IN BANK ACCOUNT ALONG WITH BALANCE IN THE SAID ACCOUNT AS ON 01.06.2016, IF ANY. THE TRIBUNAL HAD FURTHER NOTED THAT THE ASSESSEE HAS STATED THAT THE DETAILS ARE GIVEN IN SCHEDULE 2 AND SUCH SCHEDULE 2 IS AVAILABLE ON PAGE 107 OF THE PAPER BOOK AND IN THE SAID SCHEDULE, IT IS STATED THAT THE BALANCE AVAILABLE AS ON 01.06.2016 IS RS.40,48,088/- IN KOTAK BANK APART FROM SOME SMALL BALANCES IN SOME OTHER BANKS. THE TRIBUNAL DECIDED THE ISSUE ON THIS BASIS AFTER NOTING THESE FACTS THAT THIS EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE THAT THE CREDIT WORTHINESS IN THE HANDS OF SHRI. DEEPAK P KALRO REGARDING HIS INVESTMENT IN ASSESSEE COMPANY TO THE EXTENT OF RS.1.50 CRORE IS EXPLAINED. HENCE, IT IS SEEN THAT THIS NOT THE ONLY BASIS OF THE TRIBUNAL ORDER THAT THE ASSESSEE IS NOT ABLE TO PRODUCE CERTIFICATE OF SUCH DECLARATION BY SHRI. DEEPAK P KALRO IN INCOME DECLARATION SCHEME RULES, 2016. IN PARA 17 OF THE MP AS REPRODUCED ABOVE, THIS IS THE ONLY CONTENTION RAISED BY THE ASSESSEE THAT THE CERTIFICATE WAS OBTAINED BY SHRI. KALRO FROM THE DEPARTMENT AFTER THE PASSING OF THE MP NO. 28/BANG/2020 (IN ITA NO.2828/BANG/2018) PAGE 6 OF 6 IMPUGNED TRIBUNAL ORDER AND THERE IS NO CONTENTION RAISED POINTING OUT ANY APPARENT MISTAKE IN THESE FINDINGS OF THE TRIBUNAL IN PARA 7 OF THE TRIBUNAL ORDER AS DISCUSSED ABOVE. HENCE, WE FIND NO MERIT IN THIS MP AND DISMISS THE SAME. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- ( PAVAN KUMAR GADALE ) JUDICIAL MEMBER (A. K. GARODIA) ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 19/06/2020 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE