Dr. Nitin Laxmikant Lad, Nashik V. Assistant Commissioner of Income-tax,

MA 43/PUN/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6670 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-02-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / MA NO S . 42 TO 45 /P U N/ 20 1 6 ARISING OUT OF ITA NO S . 2241 TO 2244 /P U N/20 1 2 ASSESSMENT YEAR S : 20 0 5 - 0 6 TO 2008 - 09 DR. NITIN LAXMIKANT LAD, C/O DR. LADS NAVJEEVAN HOSPITAL, P.A. HOLKAR MARG, NEAR TUPSAKHARE LAWNS, TIDKE COLONY, NASHIK 422002 ... APPLICANT PAN: AANPL3552F VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK ... RESPONDENT APPLICANT BY : S HRI PRAMOD SHINGTE RESPONDENT BY : S HRI ACHAL SHARMA / DATE OF HEARING : 04 . 0 5 .201 8 / DATE OF PRONOUNCEMENT: 15 . 0 5 .201 8 / ORDER PER SUSHMA CHOWLA , JM : THE PRESENT MISCELLANEOUS APPLICATION S HAVE BEEN FILED BY THE APPLICANT AGAINST THE ORDER OF TRIBUNAL DATED 30.10.2015. 2 M A NO S . 42 TO 45 /P U N/20 1 6 2. THE APPLICANT - ASSESSEE IS AGGRIEV ED BY THE ORDER OF TRIBUNAL ON THE GROUND THAT IT HAD NOT ADJUDICATED ON PROPOSITION FOR NON - APPLICABILITY OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE PROPOSITION RAISED BY THE APPLICANT IS THAT SEARCH WAS CONDUCTED ON 19.01.2009 AND THE APPLIC ANT - ASSESSEE RECEIVED NOTICE UNDER SECTION 153A OF THE ACT ON 12.05.2009 AND AT THE RELEVANT TIME EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT WAS DIFFERENT. HOWEVER, THE FINANCE BILL, 2009 WAS PRESENTED BEFORE THE PARLIAMENT ON 06.07.2009, WHICH WAS AS SENTED ON 19.08.2009 AND EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT WAS AMENDED RETROSPECTIVELY. THE EMPHASIS LAID BY THE APPLICANT IS THAT THE TRIBUNAL HAS FAILED TO CONSIDER PRE - AMENDED PROVISIONS OF EXPLANATION 5A AND HAD APPLIED AMENDED PROVISIONS OF EXPLANATION 5A AND THE ISSUE WAS DECIDED AGAINST THE ASSESSEE BUT FOR NON DECIDING THE APPLICABILITY OF PRE - AMENDED PROVISIONS, ORDER OF THE TRIBUNAL SUFFERS FROM DEFECTS, WHICH NEED TO BE CURED BY WAY OF MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT. SIMILAR PROPOSITION HAS BEEN MADE BY THE APPLICANT FOR ALL THE APPEALS RELATING TO ASSESSMENT YEARS 2005 - 06 TO 2008 - 09. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT STRONGLY STRESSED THE ASPECTS OF MISCELLANEOUS APPLICATION AND HE STATED THAT ONCE THE ISSUE IS DECIDED AS TO THE APPLICABILITY OF AMENDED OR PRE - AMENDED PROVISIONS, THEN NON DECIDING OF APPLICABILITY OF PRE - AMENDED PROVISIONS, THE ORDER OF TRIBUNAL NEEDS TO BE RECTIFIED. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR T HE REVENUE HOWEVER, STRESSED THAT THE TRIBUNAL HAD CONSIDERED THE ISSUE AT LENGTH AND HAD ALSO NOTED THE ABOVE SAID SUBMISSIONS OF THE ASSESSEE BUT HAS HELD THE ISSUE TO BE DECIDED AGAINST THE ASSESSEE, FOLLOWING EARLIER DECISION OF THE PUNE BENCH OF TRIBU NAL IN ANOTHER CASE. IT WAS FURTHER POINTED OUT THAT IN ANY CASE, THE ISSUE WHICH HAS 3 M A NO S . 42 TO 45 /P U N/20 1 6 BEEN RAISED BY THE APPLICANT HAS BEEN DECIDED BY THE PUNE BENCH OF TRIBUNAL IN ANOTHER DECISION AND THE SAME IS SETTLED AGAINST THE APPLICANT. 4. WE HAVE HEARD THE RIV AL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH IS RAISED IN THE MISCELLANEOUS APPLICATIONS WAS THE APPLICABILITY OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE CONTENTIONS OF APPLICANT WERE NOTED BY THE TRIBUNAL VIDE PARA 11 OF THE ORDER, WHICH READS AS UNDER: - 11. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT ON THE BASIS OF RECEIPTS OF MEDICAL PROFESSION, ENTIRE AMOUNT WAS DECLARED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT TH AT EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT WAS INTRODUCED W.E.F. 01.06.2007 AND SEARCH WAS CONDUCTED ON 16.01.2009. HE FURTHER STATED THAT THE FINANCE ACT, 2009 AMENDED THE EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. IT WAS EXPLAINED THAT PURS UANT TO SEARCH ON 16.01.2009, THE ASSESSEE RECEIVED NOTICE UNDER SECTION 153A OF THE ACT ON 12.05.2009 AND FILED RETURN OF INCOME ON 12.06.2009. THE FINANCE BILL, 2009 WAS PRESENTED ON 06.07.2009 AND WAS ASSENTED ON 19.08.2009 I.E. ON THE DATE OF FILING T HE RETURN OF INCOME, LAW WHICH WAS PREVAILING ON THAT DATE SHOULD BE APPLIED. DUE DATE FOR FILING THE RETURN OF INCOME HAD EXPIRED, BUT IT WAS THE CONTENTION OF ASSESSEE THAT PENALTY PROVISIONS COULD NOT BE AMENDED RETROSPECTIVELY. RELIANCE IN THIS REGAR D WAS PLACED ON THE RATIO LAID DOWN BY THE HYDERABAD BENCH OF TRIBUNAL IN DILIP KEDIA VS. ACIT IN ITA NO.1986/HYD/2011, RELATING TO ASSESSMENT YEAR 2007 - 08, ORDER DATED 26.07.2013. IT WAS FURTHER POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR TH E ASSESSEE THAT THOUGH THE CONTRARY VIEW HAS BEEN TAKEN BY CHANDIGARH TRIBUNAL IN SHRI RAJNISH VOHRA VS. DCIT IN ITA NO.516/CHD/2012, RELATING TO ASSESSMENT YEAR 2007 - 08, ORDER DATED 31.10.2012, THE PRESENT FACTS OF THE CASE ARE AT VARIANCE. HE FURTHER PO INTED OUT THAT WHERE THE ASSESSEE HAD DECLARED ADDITIONAL INCOME ON ESTIMATE BASIS, THERE WAS NO BASIS FOR INVOKING EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. WITH REGARD TO THE SECOND ADDITION OF RS.6,00,000/ - THE LEARNED AUTHORIZED REPRESENTATIVE F OR THE ASSESSEE POINTED OUT THAT SINCE THE APPEAL AGAINST THE ORDER OF CIT(A) WAS PENDING, SO THERE WAS NO QUESTION OF ADDING RS.6,00,000/ - AS INCOME OF THE ASSESSEE. OUR ATTENTION WAS DRAWN TO CIRCULAR NO.7 OF 2003, WHEREIN NO APPEAL PROCEEDINGS WERE TO ABATE. IN THE ABSENCE OF INCRIMINATING DOCUMENTS FOUND, THERE WAS NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE SAID SUM OF RS.6,00,000/ - . 5. AFTER NOTING THE ABOVE SAID CONTENTIONS, THE CONTENTION OF THE LEARNED DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE WAS NOTED THAT SINCE THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT HAD ALREADY BEEN AMENDED, THEN THERE WAS MERIT IN THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE SAID SUBMISSIONS WERE NOTED VID E PARA, WHICH READS AS UNDER: - 4 M A NO S . 42 TO 45 /P U N/20 1 6 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN REJOINDER REFERRING TO THE EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT POINTED OUT THAT SEARCH ON PREMISES OF THE ASSESSEE TOOK PLACE ON 10.10.2007. FURTHER , RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY PUNE BENCH OF TRIBUNAL IN ACIT VS. MULAY CONSTRUCTION P. LTD. & ORS. IN ITA NOS.116 TO 119/PN/2012 & ORS. AND SINCE THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT HAD ALREADY BEEN AMENDED, S INCE THERE WAS ADDITION OF ADDITIONAL INCOME IN THE HANDS OF THE ASSESSEE, THERE WAS MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 6. THEREAFTER, THE TRIBUNAL DECIDED THE ISSUE AS TO THE APPLICABILITY OF EXPLANATION 5A TO SECTION 271(1)(C ) OF THE ACT AND HELD THE ASSESSEE EXIGIBLE TO LEVY OF PENALTY. THE ABOVE SAID NOTINGS OF THE TRIBUNAL CLEARLY REFLECTS THAT THE DECISION IN THE CASE HAS BEEN MADE AFTER REFERRING TO THE SUBMISSIONS OF ASSESSEE VIS - A - VIS PRE - AMENDED AND AMENDED PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE POINT PUT UP BY THE APPLICANT VIDE PRESENT MISCELLANEOUS APPLICATION AMOUNTS TO REVIEW OF THE ORDER OF TRIBUNAL ON THE ISSUE, WHICH HAS ALREADY BEEN ADJUDICATED AFTER NOTING VARIOUS ARGUMENTS ON THE POINT. SUCH REVIEW OF ORDER OF TRIBUNAL IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. SUCH IS THE PROPOSITION LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. RAMESH ELECTRIC AND TRADING CO . (1993) 203 ITR 497 (BOM) . THE HON BLE BOMBAY HIGH COURT HELD AS UNDER: - 5..... IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED A S AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN THE PRES ENT CASE. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. IN THE PRESENT CASE, THE ALLEGED FAILURE, AT LEAST ON ONE COUNT , IS ATTRIBUTED BY THE ASSESSEE TO THE INCOME - TAX OFFICER AND NOT THE TRIBUNAL. IN OUR VIEW, THE TRIBUNAL HAD NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. 5 M A NO S . 42 TO 45 /P U N/20 1 6 7. IN VIEW THEREOF, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION MOVED BY THE APPLICANT AND ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE APPLICANT ARE THUS, DISMISSED. 8 . IN THE RESULT, ALL MISCELLANE OUS APPLICATION OF APPLICANT ARE DISMISSED. ORDER P RONOUNCED ON THIS 15 TH DAY OF MAY , 201 8 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 15 TH M AY , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - 1 , NASHIK ; 4. THE CIT (CENTRAL), NAGPUR ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE