The ACIT, Vapi Circle, Vapi V. Jotun Powder Coatings (India) Pvt. Ltd., Mumbai

MA 46/SRT/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2651 (ITAT-SURAT)
• Duration Of Justice: 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 29-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: SURJI CHHEDA
• Section: 271(1)(c); 274; 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND SHRI ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER (VIRTUAL HEARING) MISCELLANEOUS APPLICATION NO.46/SRT/2020 (ARISING OUT OF ITA NO.2842/AHD/2016/SRT) [ [ / ASSESSMENT YEAR: 2012-13 SURAJ DEVELOPERS, 104/105, SURAJ PARK, PRAMUKH DARSHAN-2, ATUL-VASHIER ROAD, VALSAD. [PAN: ABHFS 2117 C] V S. THE INCOME TAX OFFICER, WARD-4, VALSAD. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI SURJI CHHEDA CA /REVENUE BY SMT . ANUPAMA SINGLA SR. DR / DATE OF HEARING: 06 . 1 1 .20 20 /PRONOUNCEMENT ON: 09 . 1 1 .20 20 /O R D E R PER PAWAN SINGH, JM: 1. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR SEEKING RECTIFICATION IN ORDER DATED 18.06.2018. THE MISCELLANEOUS APPLICATION WAS FILED ON 28.12.2018. 2. THE ASSESSEE HAS MADE FOLLOWING AVERMENTS IN HIS MISCELLANEOUS APPLICATIONS AS UNDER: 1. THE ABOVE APPEAL WAS DISPOSED OF BY THE TRIBUNAL BY ITS ORDER DATED 18.06.2018 AND WHICH WAS RECEIVED ON 3.8.18. THE APPELLANT ABOVE NAMED BEG TO PRESENT THIS APPLICATION FOR RECTIFICATION OF CERTAIN MISTAKES WHICH ARE APPARENT FROM RECORD IN THE SAID ORDER. 2. THE GROUNDS OF APPEAL SUBMITTED ALONG WITH FORM 36 ARE ATTACHED AS ANNEXURE 1. 3. THE ISSUE IN THE SAID APPEAL WAS LEVY OF PENALTY U/S 271[L)(C). 4. IN ITAT ORDER PARA 7. PAGE 8. LINE 2. IT HAS BEEN OBSERVED AS FOLLOWS: SURAJ DEVELOPERS VS. ITO, WARD-3, VALSAD/ M.A.NO.46/SRT/2018 FOR A.Y. 2012-13 2 'WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS OF INCOME' NOWHERE IN THE ITAT ORDER CIT ORDER OR PENALTY ORDER, IT IS STATED WHICH ARE INACCURATE PARTICULARS OF INCOME. THERE WAS SPECIFIC GROUND NO.2 ON THE SAME ISSUE AND HAS NOT BEEN CONSIDERED AND NO FINDING HAS BEEN GIVEN AGAINST THE SAME GROUND. 5. IN ITAT ORDER PARA 7. PAGE 8. LINE 12. IT HAS BEEN OBSERVED AS FOLLOWS: 'THE QUESTION IS WHETHER THE ASSESSEE HAS EXPLAINED CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME.' THERE IS NO FINDING WHATSOEVER IN THE ORDER AGAINST THAT ISSUE WHETHER IT IS QUESTION OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME.. THE PROPOSITION PUT FORTH THAT THE PENALTY CANNOT BE LEVIED WHEN THERE IS NO SPECIFIC CHARGE, HAS NOT BEEN CONSIDERED. THE GROUND NO.3 ON THE SAME ISSUE HAS NOT BEEN CONSIDERED AND NO FINDING HAS BEEN GIVEN AGAINST THE SAME GROUND. 6. IN ITAT ORDER PARA 7. PAGE 8. LINE 3. IT HAS BEEN OBSERVED AS FOLLOWS: 'WE FURTHER NOTE THAT THE SURRENDER WAS NOT VOLUNTARY AND THIS WAS MADE AFTER DETECTION OF CONCEALMENT BY THE AO BY WAY OF CALLING INFORMATION FROM BANK IN RESPECT OF RESPECTIVE PARTIES.' AS APPARENT FROM THE RECORDS THERE WAS NO DETECTION OF CONCEALMENT. IN FACT FOR LOAN ISSUE, WE HAD SUBMITTED LOAN CONFIRMATIONS AND NOTHING HAS BEEN FOUND WRONG/FALSE. THE APPELLANT HAD SUBMITTED THE SAME AND HAS BEEN RECORDED AT PARA 5 OF THE ORDER. THE ASSESSEE OFFERED AN EXPLANATION WHICH HAS REMAINED UNPROVED BUT NOT DISPROVED. THERE IS NO FINDING IN ANY ORDER THAT THERE WAS DETECTION OF CONCEALMENT BY THE AO BY FINDING THAT CONFIRMATIONS WERE FALSE. 7. THE JUDGMENT OF MAK DATA 318 ITR 543 IS NOT APPLICABLE IN OUR CASE AND HAS BEEN WRONGLY FOLLOWED. 8. THE JUDGMENT OF YOGESH CHHOTALAL SHAH (ITA 2811/AHD/2012] IS NOT FOLLOWED IN SPITE OF THE FACT THAT LOANS WERE DULY CONFIRMED AND THERE WAS AN EXPLANATION WHICH IS UPROVED BUT NOT DISPROVED. 9. ALL THREE ISSUES OF PENALTY HAVE NOT BEEN DEALT SEPARATELY IN SPITE OF DIFFERENT FACTS AND DISPOSED IN WHOLE SALE MANNER WITHOUT DISCUSSION ON EACH ISSUE. 10. THERE ARE, AS STATED ABOVE, MISTAKES APPARENT FROM RECORDS. 11. IT IS RESPECTFULLY SUBMITTED THAT THE OMISSION ON THE PART OF THE TRIBUNAL TO CONSIDER THESE DETAILS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD. THE APPELLANTS SUBMIT THAT THE TRIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS SAID ORDER TO RECTIFY THE SAID MISTAKE WHICH IS APPARENT FROM THE RECORD. 3. WE HAVE HEARD THE SUBMISSIONS OF LEARNED AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND THE LEARNED DEPARTMENTAL SURAJ DEVELOPERS VS. ITO, WARD-3, VALSAD/ M.A.NO.46/SRT/2018 FOR A.Y. 2012-13 3 REPRESENTATIVE (DR) FOR THE REVENUE. THE LD. AR FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS RAISED GROUND NO.2, WHEREIN SPECIFIC GROUND WAS RAISED THAT THE LEARNED COMMISSIONER OF INCOME TAX(A)[CIT(A)], ERRED IN LAW IN CONFIRMING THE ACTION OF LEVY OF PENALTY FOR FURNISHING INACCURATE PARTICULARS INSPITE OF THE FACT THAT NOWHERE AT THE PENALTY ORDER STATES THAT WHAT IS THE INACCURATE PARTICULARS FURNISHED BY THE ASSESSEE AND THAT IN GROUND NO.3, THE ASSESSEE RAISED SPECIFIC GROUND THAT SPECIFIC CHARGE IN NOTICE UNDER SECTION 274 R.W.S 271 IS NOT DISCERNABLE. THE LD.AR OF THE ASSESSEE SUBMITS THAT ASSESSEE HAD ALSO FILED WRITTEN SUBMISSION DATED 21.03.2018 AND THE COPY OF NOTICE UNDER SECTION 274 R.W.S. 271 DATED 23.03.2015. THE ASSESSEE ALSO RELIED UPON THE DECISION OF TRIBUNAL IN YOGESHKUMAR CHHOTALAL SHAH VS ITO IN ITA NO.2811/AHD/2012 DATED 05.04.2013, WHICH HAS NOT BEEN CONSIDERED BY THE BENCH. THE DECISION IN MAK DATA REPORTED IN 318 ITR 543 IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. THE LD.AR SUBMITS THAT NON-CONSIDERATION OF SUBMISSION OF ASSESSEE FURNISHED IN WRITTEN SUBMISSION AND NON-ADJUDICATION OF SPECIFIC GROUND IS A MISTAKE APPARENT ON RECORD AND THE ORDER DATED 18.06.2018 DESERVES TO BE RECALLED FOR HEARING THE APPEAL AFRESH. IN ADDITION TO HIS ORAL SUBMISSIONS THE LD. AR OF THE ASSESSEE ALSO FILED HIS SHORT WRITTEN SYNOPSIS DATED 06.11.2020, THROUGH E-MAIL. 4. ON THE OTHER HAND, THE LEARNED DR FOR THE REVENUE SUBMITS THAT THERE IS NO MISTAKE APPARENT IN THE ORDER DATED 18.06.2018 WHICH CAN BE CLASSIFIED AS MISTAKE APPARENT WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. THE TRIBUNAL HAS PASSED WELL-REASONED AND DETAILED ORDER. EACH AND SURAJ DEVELOPERS VS. ITO, WARD-3, VALSAD/ M.A.NO.46/SRT/2018 FOR A.Y. 2012-13 4 EVERY SUBMISSION OF ASSESSEE IS DULY CONSIDERED WHILE PASSING THE ORDER. THE ASSESSEE IS SEEKING THE REVIVAL OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER THE GARB OF APPLICATION UNDER SECTION 254(2) OF THE ACT. THE LD.AR PRAYED FOR DISMISSAL OF THE APPLICATION. 5. WE HAVE CONSIDERED THE SUBMISSION OF LD. REPRESENTATIVE OF THE PARTIES AND THE WRITTEN SYNOPSIS FILED BY LD. AR OF ASSESSEE DATED 06.11.2020. WE HAVE ALSO GONE THROUGH THE CONTENTS OF ORDER DATED 18.06.2018. WE HAVE SEEN THAT IN PARA 2 OF THE ORDER, OUR PREDECESSOR HAVE DELIBERATED THAT BY WAY OF GROUND NO.1 TO 5 THE ASSESSEE HAS CHALLENGED THE ACTION OF LD.CIT(A) IN CONFIRMING PENALTY OF RS.95,327/- LEVIED UNDER SECTION 271(1)(C) OF THE ACT. THE TRIBUNAL HAS SUMMARIZED THE FACT OF THE CASE, ORDER OF LOWER AUTHORITY IN PARA 4. THE SUBMISSION OF LD.AR OF THE ASSESSEE IN PARA -5 OF THE ORDER. THE DECISION OF YOGESH KUMAR CHHOTALAL SHAH VS ITO (SUPRA) IS ALSO CONSIDERED BY OUR PREDECESSOR IN PARA-5 OF THE ORDER. FURTHER, IN PARA 7, OUR PREDECESSOR HAS CONFIRMED THE ORDER OF LD. CIT(A) IN THE WELL-REASONED AND DETAILED ORDER. 6. IN THE PRESENT MISCELLANEOUS APPLICATION, THE ASSESSEE HAS NOWHERE CONTENDED THAT THE SUBMISSION MADE ON BEHALF OF THE ASSESSEE WAS NOT PROPERLY RECORDED BY THE BENCH. THERE IS NO AVERMENT IN MISCELLANEOUS APPLICATION THAT ANY SPECIFIC SUBMISSION ON GROUND NO.3 ABOUT SPECIFYING THE CHARGE IN THE NOTICE UNDER SECTION 274 R.W.S 271, WAS MADE DURING THE SUBMISSION. PERUSAL OF CONTENTS OF MISCELLANEOUS APPLICATION SHOWS THAT THE ASSESSEE IS SEEKING REVIEW OF THE ORDER DATED 18.06.2018 WHICH IS SURAJ DEVELOPERS VS. ITO, WARD-3, VALSAD/ M.A.NO.46/SRT/2018 FOR A.Y. 2012-13 5 BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. THEREFORE, WE ARE NOT CONVINCED WITH THE SUBMISSION OF LD.AR OF THE ASSESSEE THAT THERE IS A MISTAKE APPARENT, WHICH CAN BE RECTIFIED, ACCORDINGLY, MA OF THE ASSESSEE IS REJECTED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 09-11-2020. SD/- SD/- (ARJUN LAL SAINI) (PAWAN SINGH) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 9 TH NOV , 2020/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT