Shri Shailesh Gopal Mhaske, Pune V. Assistant Commissioner of Income-tax, Central Circle -2(2), Pune

MA 29/PUN/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4103 (ITAT-PUNE)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-08-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 26-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: HARI KRISHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 29 /P U N/201 8 ARISING OUT OF ITA NO. 2 242 /PN/201 4 ASSESSMENT YEAR : 20 11 - 12 MR. SHAILESH G. MHASKE MAI BUNGALOW, NEAR VSI INSTITUTE, MANJARI BUDRUK, PUNE . APP LICANT PAN: BDQPM9530H VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE . RESPONDENT APPLICANT BY : SHRI HARIKRISHAN RESPONDENT BY : SHRI PANKAJ GARG , ADDL.CIT / DATE OF HEARING : 0 3 . 08 .201 8 / DATE OF PRONOUNCEMENT: 26 . 1 0 .201 8 / ORDER PER SUSHMA CHOWLA, JM : THE APPLICANT ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION AGAINST THE ORDER OF TRIBUNAL DATED 27 .09.2017. 2. THE GRIEVANCE OF APPLICANT IS THAT IT HAD FILED AN APPLICATION UNDER RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 (IN SHORT THE RULES ) ON 22.08.2017. THE APPLICANT FURTHER SAYS THAT THOUGH THE TRIBUNAL WHILE DECIDING THE 2 M A NO. 29 /P U N/201 8 APPE AL OF REVENUE HAD TAKEN NOTE OF THE APPLICATION FILED BY ASSESSEE BUT HAS NOT DECIDED SPECIFIC GROUND OF APPEAL RAISED BY ASSESSEE IN ITS APPLICATION. THE APPLICANT IS AGGRIEVED BY THE ORDER OF TRIBUNAL IN UPHOLDING LEVY OF PENALTY UNDER SECTION 271 AAA OF THE ACT AND ALLOWING THE APPEAL OF REVENUE. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT STRONGLY STRESSED THAT LEGAL GROUNDS OF APPEAL RAISED BY IT HAVE NOT BEEN DECIDED , AL THOUGH THE ARGUMENTS OF APPLICANT ARE NOTED UNDER PARA 10 AT PAGES 6 AND 7 OF THE APPELLATE ORDER AND THE DECISION HAS BEE N GIVEN IN PARA 15 AT PAGE 11. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT THE ORDER PASSED BY TRIBUNAL IS ELABORATE AND TALKS OF ALL THE LIMBS. S INCE THE ASSESSEE HAD ADMITTED TO THE ADDITIONAL INCOME DURING THE COURSE OF SEARCH AND HENCE, IT WAS HELD THAT HE WAS LIABLE TO LEVY OF PENALTY UNDER SECTION 271 AAA OF THE ACT. 5. ON PERUSAL OF RECORD AND AFTER HEARING BOTH THE LEARNED AUTHORIZED REPRESE NTATIVES, WE FIND THAT THE GRIEVANCE OF APPLICANT VIDE PRESENT MISCELLANEOUS APPLICATION IS THAT APPLICATION MADE BY APPLICANT UNDER RULE 27 OF THE RULES HAS NOT BEEN PROPERLY DECIDED BY THE TRIBUNAL, WHEREIN IT HAS RAISED THE ISSUE AGAINST LEVY OF PENALTY UNDER SECTION 271AAA OF THE ACT, WHEREIN THE ASSESSING OFFICER HAD NOT ISSUED SHOW CAUSE NOTICE OR LEVIED PENALTY FOR ANY SPECIFIC CHARGE OUT OF FIVE CHARGES MENTIONED IN THE SAID SECTION. WE FIND THAT THE ARGUMENTS OF ASSESSEE HAVE BEEN NOTED IN PARA 10 OF THE ORDER AND ALSO THE TRIBUNAL HAD NOTED THE ARGUMENTS OF ASSESSEE IN WRITTEN SUBMISSIONS THAT PENALTY WAS NOT LEGALLY 3 M A NO. 29 /P U N/201 8 SUSTAINABLE ON THE GROUND THAT IT WAS INITIATED FOR CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME AND IT WAS LEVIED FOR UNDISCLOSED INCOME. THE TRIBUNAL HAS CONSIDERED THE ISSUE IN PARA 11 ONWARDS AND HAS ALSO REFERRED TO THE PROVISIONS OF SECTION IN EXPLANATION THEREUNDER. VIDE PARA 14, THE CONTENTION OF ASSESSEE THAT PENALTY PROCEEDINGS HAVE BEEN INITIATED FOR FURN ISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME AND HENCE, SATISFACTION WAS NOT CORRECT, WAS DEALT WITH. THE FINDINGS OF TRIBUNAL IN PARA 14 ARE AS UNDER: - 14. NOW, COMING TO THE MAIN PROVISIONS OF SECTION 271AAA OF THE ACT. THE FIR ST GRIEVANCE OF ASSESSEE IS THAT PENALTY PROCEEDINGS HAVE BEEN INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME AND HENCE, THE SATISFACTION IS INCORRECT. IN CASE THE ASSESSMENT ORDER AND OBSERVATIONS OF THE ASSESSING OFFICER ARE READ, THEN HE IS ONLY TALKING ABOUT ADDITIONAL INCOME OFFERED BY THE ASSESSEE. HE ALSO WHILE CONCLUDING STATES THAT THE ADDITIONAL / TOTAL INCOME WAS OFFERED FOR TAXATION ONLY AS A RESULT OF SEARCH ACTION AND SINCE IT WAS SO OFFERED, PENALTY P ROCEEDINGS UNDER SECTION 271AAA OF THE ACT WERE INITIATED. THOUGH, HE MENTIONS CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME BUT THAT LIMB DOES NOT DECIDE THE ACTION UNDERTAKEN BY THE ASSESSING OFFICER UNDER SECTION 271AAA OF TH E ACT AND AT BEST IT IS SUPERFLUOUS. 6. THEN, VIDE PARA 15, THE TRIBUNAL HAS DEALT WITH THE ORDER PASSED UNDER SECTION 271AAA OF THE ACT AND IT HAS BEEN HELD THAT THE ASSESSING OFFICER TALKS ABOUT UNDISCLOSED INCOME WHICH WAS THE BASIS FOR LEVYING PENALT Y UNDER SECTION 271AAA OF THE ACT. THE TRIBUNAL THUS, HAS HELD THAT THE ORDER LEVYING PENALTY UNDER SECTION 271AAA OF THE ACT SPECIFICALLY TALKS ABOUT UNDISCLOSED INCOME AND RELIANCE PLACED UPON BY THE ASSESSEE ON A DECISION WAS NOT CORRECTLY PLACED. THE ISSUE HAS BEEN DECIDED ON MERITS TAKING INTO CONSIDERATION EVEN THE GRIEVANCE RAISED VIDE RULE 27 OF THE RULES. THE ASSESSEE UNDER THE GARB OF MISCELLANEOUS APPLICATION CANNOT RE - ARGUE ITS CASE. FURTHER, THE TRIBUNAL HAS NO POWER TO REVIEW ITS DECISION AND THE LIMITED POWER UNDER SECTION 254(2) OF THE ACT IS TO CORRECT ANY MISTAKES APPARENT FROM THE RECORD. IN THE ABSENCE OF THE APPLICANT POINTING OUT ANY 4 M A NO. 29 /P U N/201 8 SUCH MISTAKES WHICH ARE APPARENT FROM THE RECORD AND IS RE - ARGUING ITS CASE, HENCE THE MISCELLANEOU S APPLICATION DOES NOT STAND AND THE SAME IS DISMISSED. 7 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS DISMISSED. ORDER PRONOUNCED ON THIS 26 TH DAY OF OCTOBER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 26 TH OCTOBER , 201 8 . GCVSR / COPY OF THE ORDER IS FOR WARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - CENTRAL , PUNE ; 4. THE CIT (CENTRAL) , PUNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRI VATE SECRETARY , / ITAT, PUNE