Income Tax Officer, Ward-2(1), Mysore V. SRI Jaswanth Kumar Kothari, Mysore

MA 364/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6615 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 6 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: 16-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P SIDDAPPAJI
• Assessee Lawyers: V SRINIVASAN
• Keywords: Principle of natural justice; Cost of acquisition
• Section: 271(1)(c); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR , JUDICIAL MEMBER PETITION NO AND ASSESSMENT YEAR APPELLANT RESPONDENT M.P. NO.363/BANG/2018 (IN ITA NO.1316/BANG/2016) 2007-08 INCOME TAX OFFICER, WARD 2(1), MYSURU. SHRI JASWANTH KUMAR KOTHARI, NO.2875, 1 ST MAIN ROAD, MAHAVEER NAGAR, MYSURU. PAN : AJAPK 9270 F M.P. NO. 364/BANG/2018 (IN ITA NO.788/BANG/2013) 200 7 - 0 8 -DO -DO- REVENUE BY : SHRI. P. SIDDAPPAJI, ADDL. CIT ASSESSEE BY : SHRI. V. SRINIVASAN, ADVOCATE DATE OF HEARING : 1 1 . 0 1 .201 9 DATE OF PRONOUNCEMENT : 23 . 0 1 .201 9 O R D E R PER JASON P BOAZ, ACCOUNTANT MEMBER THESE MISCELLANEOUS PETITIONS (M.P.) BY THE REVENUE ARE RAISED IN RESPECT OF TRIBUNALS ORDERS IN ITA NOS. 1316/BANG/2016 DATED 20.07.2018 FOR ASSESSMENT YEAR 2007-08. SINCE THEY PERTAIN TO THE SAME ORDER OF THE TRIBUNAL, BOTH THE MPS WILL BE DISPOSED OFF TOGETHER HEREUNDER: REVENUES MP NOS. 363 AND 364/BANG/2018 FOR ASSESSMENT YEAR 2007-08 (IN ITA NO.1316/BANG/2013 DATED 23.03.2017) M.P. NOS.363, 364/BANG/2018 (IN ITA NO.1316/BANG/2016 AND ITA NO.788/BANG/2013) PAGE 2 OF 4 2.1 IN THESE MPS, REVENUE, INTER ALIA, SUBMITS THAT THE TRIBUNALS ORDER IN ITA NO.1316/BANG/2016 DATED 20.07.2018 IN RESPECT OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT REQUIRES RECTIFICATION, IN VIEW OF MISTAKES APPARENT FROM THE RECORD THAT HAS CREPT INTO THE SAID ORDER, WHICH ARE AS UNDER: 1. THE HON'BLE ITAT ERRED IN HOLDING THAT THE ADDITIONS FOR WHICH PENALTY U/S.271(1)(C) WAS LEVIED HAS ALREADY BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 23/03/2017 WHEREAS, THE HON'BLE ITAT HAS RESTORED THE MATTER TO THE FILES OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ASSESSMENT ORDER U/S.144 OF THE INCOME TAX ACT, 1961 DATED 30/12/2009. 2. THE HON'BLE ITAT DECISION IS OPPOSED TO LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE AS IT RELIED ON THE ORDER GIVING EFFECT TO THE ORDER OF THE ITAT PASSED BY ASSESSING OFFICER VIDE ORDER DATED 02/06/2017, FOR THE PURPOSE OF REDUCING THE ARREARS WHEREAS, THE ASSESSING OFFICER HAS TO PASS A SPEAKING ORDER U/S.143(3) RWS 254 OF THE INCOME TAX ACT, 1961 BEFORE 31/12/2018. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS OBSERVED THAT THERE IS A MISTAKE APPARENT FROM RECORDS THAT THE ORDER OF THE HON'BLE ITAT NEEDS TO BE MODIFIED TO THE EXTENT THAT THE QUANTUM HAS NOT BEEN DELETED WHEREAS THE ORDER U/S.144 DATED 30/12/2009 HAS BEEN RESTORED TO THE FILES OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 2.2 IT IS SUBMITTED THAT THE TRIBUNAL IN ITS ORDER IN ITA NO.788/BANG/2012 DATED 23.03.2017 IN THE CASE ON HAND, ON QUANTUM ISSUE, HAD NOT DELETED ALL THE DISALLOWANCES / ADDITIONS, BUT HAD ALSO REMITTED SOME ISSUES FOR FRESH ADJUDICATION; THE DETAILS OF WHICH ARE AS UNDER: SL. NO. ISSUES AMOUNT FINDING OF ITAT 1. MONEY RECEIVED FROM MRS. VISHAL JAIN RS.10,00,000/- DELETED 2. AMOUNT RECEIVED FROM FICTITIOUS PERSONS RS.56,34,250/- DELETED 3. ADVANCE RECEIVED DEVELOPMENT AGREEMENT RS.2,76,09,459/- REMITTED TO THE FILE OF AO FOR FRESH ADJUDICATION 4. ADDITIONS UNDER SECTION 68 ON ACCOUNT OF BALANCES IN BANK OF BARODA RS.2,76,09,459/- 5. UNDERVALUATION OF COST OF ACQUISITION OF LANDS RS.6,44,500/- M.P. NOS.363, 364/BANG/2018 (IN ITA NO.1316/BANG/2016 AND ITA NO.788/BANG/2013) PAGE 3 OF 4 2.3 IN VIEW OF THE ABOVE, THE LEARNED DR PRAYS THAT THE RECORD OF THE TRIBUNALS ORDER IN ITA NO.1316/BANG/2013 DATED 20.07.2018; AT PARA 3 OF THIS ORDER, BE SUITABLY MODIFIED IN THE CONTEXT OF THE ABOVE AVERMENTS. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD; IN THE CONTEXT OF SUBMISSIONS PUT FORTH IN RESPECT OF THE IMPUGNED TRIBUNALS ORDER NO.1316/BANG/2013 DATED 20.07.2018 AND THE FINDINGS RENDERED IN TRIBUNALS ORDER IN ITA NO.788/BANG/2013 DATED 23.03.2017, ON QUANTUM ISSUES. WE FIND THAT, AS SUBMITTED BY REVENUE, MISTAKES HAVE INADVERTENTLY CREPT INTO PARA 3 OF TRIBUNALS ORDER IN ITA NO.1316/BANG/2017 DATED 20.07.2018 THAT REQUIRE RECTIFICATION. 3.1 IN THIS REGARD, PARA 3 OF THE TRIBUNALS ORDER DATED 20.07.2018 READS AS: 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL AND THE ORDER OF THE LOWER AUTHORITIES, WE FIND THAT THE ADDITIONS FOR WHICH PENALTY UNDER SECTION 271(1)(C) WAS LEVIED HAS ALREADY BEEN DELETED BY THE TRIBUNAL WIDE ITS ORDER DATED 23.03.2017. THEREFORE, THE PENALTY UNDER SECTION 271(1)(C) IS NOT SUSTAINABLE IN THE EYES OF LAW. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY. 3.2 PARA 3 OF TRIBUNALS ORDER IN ITA NO.1316/BANG/2013 DATED 20.07.2018, AFTER RECTIFICATION OF PARA 3, IS ASCENDED TO NOW READ AS UNDER: 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL AND THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE ADDITIONS / DISALLOWANCES FOR WHICH PENALTY UNDER SECTION 271(1)(C) WAS LEVIED; HAVE EITHER BEEN DELETED OR M.P. NOS.363, 364/BANG/2018 (IN ITA NO.1316/BANG/2016 AND ITA NO.788/BANG/2013) PAGE 4 OF 4 SET ASIDE TO THE FILE OF THE ASSESSING OFFICER (AO) FOR FRESH ADJUDICATION VIDE TRIBUNALS ORDER IN ITA NO.788/BANG/2013 DATED 23.03.2017. IN THIS VIEW OF THE MATTER, THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2007-08 IS NOT SUSTAINABLE IN THE EYES OF LAW. WE, ACCORDINGLY, SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE SAID PENALTY. 4. IN THE RESULT, BOTH REVENUES MPS ARE DISPOSED OFF AS ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JANUARY, 2019. SD/- SD/- BANGALORE. DATED: 23 RD JANUARY, 2019. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE. ( LALIET KUMAR ) ( JASON P BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER