ASST CEN CIR 33, V. KUNAL ASSETS & EXIM P. LTD,

MA 485/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7826 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMEER G DALAL; VIPUL B JOSHI
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER. M.A. NO. 485/MUM/2011. (IN ITA NO. 1541/MUM/2009) ASSESSMENT YEAR : 2005-06. ASSTT. COMMISSIONER OF INCOME-TAX, M/S KUNAL ASSETS & EXIM LTD. CENTRAL CIRCLE-33, MUMBAI. VS. 218, PREM BAUG, FLAT NO. 6, 1 ST FLOOR, SIR BHALCHAND ROAD, M ATUNGA, MUMBAI 400 019. PAN AAACK6056H APPLICANT RESPONDENT. APPLICANT BY : SHRI ATIQ AHMED. RESPONDENT BY : SHRI VIPUL B.JOSHI, AND SHRI SAMEER G. DALAL. DATE OF HEARING : 24-02-2012 DATE OF PRONOUNCEMENT : 16-03-2012 O R D E R. PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE REVENUE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF T HE TRIBUNAL DATED 25-03-2011 PASSED IN ITA NO. 1541/MUM/2009 ON THE FOLLOWING GR OUND : THE INCOME TAX APPELLATE TRIBUNAL A BENCH HAS, VIDE ORDER DATED 25-03-2011 DISMISSED THE APPEAL OF THE REVENUE. THE HONBLE ITAT HAS RELIED ON THE FOLLOWING JUDGMENTS : 2 M.A.NO. 485/MUM/2011. 1. CIT VS. SDV CHANDRU LTD. 266 ITR 175 (MAD). 2. CIT VS. CHHABRA EMPORIUM 264 ITR 249 AND 3. CIT VS. KANHAYALAL 299 ITR 19. WHILE DISMISSING THE APPEAL, THE HONBLE ITAT HAS C OME TO A CONCLUSION THAT THE ASSESSEES CASE IS COVERED BY E XPLANATION 5 TO SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. HOWEVER, THE HONBLE ITAT HAS NOT CONSIDERED FAC T THAT THE CASE OF THE ASSESSEE IS COVERED BY THE DECISION IN FAVOUR O F REVENUE BY ITAT MUMBAI BENCH IN THE CASE OF AJIT B ZOTA 40 SOT 543 DATED 16-07-2010, WHEREIN IT WAS HELD THAT PROVISIONS OF EXPLANATION 5 WILL BE APPLICABLE ONLY TO THOSE ASSESSMENT YEARS WHERE DUE DATE FOR FILING OF RETURNS HAVE NOT EXPIRED ON THE DATE OF SEARCH. IN THIS DECISION, IT AT HAS FOLLOWED THE DECISION OF THIRD MEMBER IN THE CASE OF DAHAYABHAI PATEL 121 ITD 59. SIMILAR FINDING WAS ALSO GIVEN IN THE CASE OF MAHEN DRA MITTAL 9 TAXMAN.COM 212. 3. IN THIS CONTEXT, IT IS SEEN THAT THE ITAT HAS ER RED IN RELYING ON THE JUDGMENTS WHICH PERTAIN TO OLD PROVISIONS. THE PRES ENT CASE IS COVERED BY PROVISIONS OF SECTION 153A AND THE ABOVE MENTIONED JUDGMENTS ARE RELATING TO AMENDED PROVISIONS OF SECTION 153A. THE ITAT IS BOUND TO FOLLOW THE DECISION OF COORDINATE BENCH AND DECISION OF THIRD MEMBER BENCH ON THE SAME ISSUE. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ORDER O F THE LEARNED CIT(APPEALS) CANCELLING THE PENALTY IMPOSED BY THE AO U/S 271(1) (C) WAS UPHELD BY THE TRIBUNAL VIDE ITS ORDER DATED 25-03-2011 (SUPRA) RE LYING, INTER ALIA, ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SDV CHANDRU LTD. 266 ITR 175 WHEREIN IT WAS HELD THAT THE IMMUNITY PROVIDED IN EXPLANATION 5 TO SECTION 271(1)(C) WAS AVAILABLE TO THE ASSESSEE EVEN FOR TH E YEARS EARLIER TO THE YEAR IN WHICH SEARCH WAS CONDUCTED. THE PROVISIONS OF SECTI ON 153A WERE ALSO TAKEN INTO 3 M.A.NO. 485/MUM/2011. CONSIDERATION BY THE TRIBUNAL IN PARAGRAPH NO. 15 O F ITS ORDER WHILE RENDERING THE SAID DECISION. IT IS NO DOUBT TRUE THAT THERE ARE S OME DECISIONS OF THE TRIBUNAL INCLUDING THE THIRD MEMBER DECISION OF AHMEDABAD BE NCH OF ITAT IN THE CASE OF DAHAYABHAI PATEL 12 ITD 59 WHICH ARE AGAINST THE AS SESSEE ON THIS ISSUE. THE TRIBUNAL IN ITS ORDER DATED 25-03-2011 (SUPRA), HOW EVER, HAS PREFERRED TO FOLLOW THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CA SE OF SDV CHANDRU LTD. (SUPRA) BEING THE DECISION OF A HIGHER FORUM. IN OU R OPINION, THERE IS THUS NO MISTAKE IN THE SAID ORDER OF THE TRIBUNAL AS ALLEGE D BY THE REVENUE IN THE PRESENT APPLICATION CALLING FOR ANY RECTIFICATION U/S 254( 2). MOREOVER, THE ISSUE INVOLVED IN THE APPEAL FILED BEFORE THE TRIBUNAL WAS HIGHLY DEB ATABLE ISSUE ON WHICH ONE POSSIBLE VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN ITS ORDER DATED 25-03-2011 (SUPRA). RECTIFICATION OF THE SAID ORDER, THEREFORE, IS BEY OND THE SCOPE OF SECTION 254(2) AND THIS APPLICATION FILED BY THE REVENUE IS LIABLE TO BE DISMISSED ON THIS COUNT ALSO. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 16 TH MARCH, 2012. SD/- SD/- (VIJAY PAL RAO) (P.M. JAGTAP) JUDICIAL MEMBER. ACCO UNTANT MEMBER MUMBAI, DATED : 16 TH MARCH, 2012. WAKODE 4 M.A.NO. 485/MUM/2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI BENCHES , MUMBAI.