DCIT CENTRAL CIRCLE 8 ( 2) , MUMBAI V. RADHAKRISHNA ROADWAYS P.LTD, NAVI MUMBAI

MA 464/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5940 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 14-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Assessee Lawyers: VIJAY MEHATA
• Section: 201; 254(2)

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI, JUDICIAL MEMBER M.A.NO.464/MUM/2019 ( I .TA NO.3728/MUM/2019 ( / / / / ASSESSMENT YEAR:2010-11) DCIT,CENTRAL CIRCLE 8(2) ROOM NO.658 AAYAKAR BHAVAN, MUMBAI. / VS. M/S.RADHAKRISHNA ROADWAYS P. LTD.,STEEL CHAMBERS, 218-A,2 ND FLOOR,KALAMBOLI, NAVI MUMBAI 410 218. ./ ./ PAN/GIR NO. AABCP 5835 C ( / // / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI V.VINOD KUMAR D.R / RESPONDENT BY: SHRI VIJAY MEHATA A.R / / / / DATE OF HEARING :08.11.2019 / DATE OF PRONOUNCEMENT :21.11.2019 / O R D E R PER RAJESH KUMAR ACCOUNTANT MEMBER BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE RE VENUE SEEKS RECALLING OF THE ORDER OF TRIBUNAL PASSED IN ITA NO.464/MUM/2019 FOR A.Y. 201 0-11 DATED 14.03.2019. 2. THE LEARNED D.R. SUBMITTED THAT WHILE PASSING T HE SAID ORDER DATED 14.03.2019, THE TRIBUNAL HELD THAT WHILE ISSUING THE NOTICE U/S.274 R.W.S.27 1 OF THE ACT DATED 28.03.2013, THE AO HAS NOT INDICATED ONE OF THE TWO LIMBS ON WHICH THE PENALTY WAS PROPOSED TO BE IMPOSED. THE LD DR. DURING THE COURSE OF HEARING TOOK THE BENCH THROUGH THE CONTENTS OF THE NOTICE AND SUBMITTED THAT THE AO HAS INDICATED THE LIMB BY HIGHLIGHTING THE R ELEVANT PORTION WHEREAS THE REDUNDANT PORTION WAS NOT HIGHLIGHTED. THEREFORE, LEARNED D.R. PRAYED THAT THE SAID ORDER MAY KINDLY BE RECALLED AS HAVING PRIMA FACIE APPARENT MISTAKE. 3. THE LEARNED A.R. OF THE ASSESSEE ON THE OTHER H AND, STRONGLY OPPOSED THE ARGUMENTS OF THE LEARNED D.R. BY STATING THAT THE SAID ARGUMENTS WER E NEVER RAISED DURING THE COURSE OF HEARING BEFORE THE BENCH AND FOR THE FIRST TIME WAS BEING RAISED BY WAY OF MISCELLANEOUS APPLICATION. REFERRING TO THE PROVISIONS OF SECTION 254(2) OF THE ACT, THE LEARNED A.R. OF THE ASSESSEE STATED T HAT THE SCOPE OF THE SECTION IS VERY LIMITED AND CERTAI NLY TWO OPINIONS ARE POSSIBLE FROM THE FORMAT AND LANGUAGE USED IN THE NOTICE BY REFERRING TO THE NO TICE WHEREIN ONE PART IS HIGHLIGHTED AND THE OTHER IS NOT HIGHLIGHTED. THE LEARNED A.R. OF THE ASSESSE E TOOK US TO PAGE21 OF THE PAPER BOOK WHICH WAS A REPLY FILED BEFORE THE ADIT DATED 31.08.2013, RESPO NDING TO THE NOTICE ISSUED U/S.274 R.W.S.271 OF THE ACT DATED 28.03.2013 . THE LD AR SUBMITTED THAT AS IS CLEAR FROM THE REPLY TO THE SAID SHOW CAUSE NOTICE , THE ASSESSEE REPLIED FOR BOTH CHARGES NAME LY CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME AS APPEARING IN TH E NOTICE. THE LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS UNDERSTOOD BOTH LIM BS AND RESPONDED ACCORDINGLY. THE LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT THE LEARNED D.R. WHO ARGUED THE MATTER BEFORE THE TRIBUNAL HAS UNDERSTOOD THE NOTICE IN THE SAME MANNER AND THEREF ORE, THERE IS NO MISTAKE APPARENT FROM RECORD. THE LEARNED A.R. OF THE ASSESSEE FINALLY SUBMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE MAY KINDLY BE DISMISSED AS BEING DEVOID OF MERITS. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSIN G THE MATERIAL AVAILABLE ON RECORD, WE OBSERVE THAT THE MISCELLANEOUS APPLICATION IS MOVED BY THE DEPARTMENT FOR RECALLING OF THE ORDER OF TRIBUNAL DATED 14.03.2019 WHEREBY THE COORDINATE BE NCH OF THE TRIBUNAL ALLOWED THE APPEAL OF ASSESSEE BY DIRECTING TO DELETE THE PENALTY IMPOSED U/S.271(1)(C) OF THE ACT ON THE GROUND THAT THE AO HAS NOT APPLIED HIS MIND WHILE ISSUING THE NOTIC E U/S.274 R.W.S.271 OF THE ACT DATED 28.03.2013. WE FIND THAT ONE OF THE TWO LIMBS HAVING CONCEALED PARTICULARS OF INCOME HAVE BEEN HIGHLIGHTED WHEREAS THE SECOND LIMB HAS NOT BEEN STRUCK OFF, AN D THIS ARGUMENT HAS BEEN TAKEN FOR THE FIRST TIME BY WAY OF THIS MISCELLANEOUS APPLICATION ONLY . WE ALSO PERUSED THE REPLY OF THE ASSESSEE DATED 31.08.2013 WHEREIN THE ASSESSEE HAS UNDERSTOOD THE NOTICE TO MEAN THAT PENALTY PROCEEDINGS HAS BEEN UNDERSTOOD BY THE ASSESSEE TO BE PROPOSED FOR BOTH THE LIMBS. THE RELEVANT PART OF THE REPLY IS REPRODUCED AS UNDER:- RADHAKRISHNA ROADWAY PRIVATE LIMITED (THE ASSESSE E OR THE COMPANY) IS IN RECEIPT OF YOUR NOTICE DATED 28 TH MARCH,2013 U/S.274 R.W.S.271 OF THE INCOME TAX ACT ,1961, STATING AS TO WHY PENALTY U/S.271(1)(C) OF THE ACT SHOULD NOT BE LEVIED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF IN COME. IT IS CLEAR FROM THE ABOVE AS THE ASSESSEE HAS UNDE RSTOOD THE NOTICE IN THE SAME MANNER IN WHICH IT WAS ISSUED BY THE AO AND UNDERSTOOD BY THE LEARNED D.R. ALSO. ACCORDINGLY, WE FIND THAT THERE ARE TWO VIEWS POSSIBLE ON EXAMINING THI S NOTICE ISSUED U/S.274 R.W.S.271 OF THE ACT DATED 28.03.2013. IN VIEW OF THE ABOVE DISCUSSI ON, WE HOLD THAT THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 14.03. 2019 AND THE MISCELLANEOUS APPLICATION HAS NO MERIT AND IS DISMISSED . 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2019. SD/- SD/- ( RAMLAL NEGI ) ( RAJESH KUMAR ) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21 ST NOVEMBER, 2019. KSS , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI