DCIT-14(2)(1), MUMBAI V. M/S.LEO SCHACHTER DIAMONDS INDIA PRIVATE LIMITED , MUMBAI

MA 498/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3315 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2011-2012
• Appeal Filed On: 30-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMAPANI BORA
• Section: 10B; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K , BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY , JM & SHRI M.BALAGANESH, AM MA NO.498/MUM/2019 (ARISING OUT OF ITA NO. 5931 /MUM/201 7 ( ASSESSMENT YEAR : 2011 - 12 ) DCIT - 14(2)(1) AAYAKAR BHAVAN M.K.ROAD, MUMBAI 400 020 VS. M/S. LEO SCHACHTER DIAMONDS INDIA PRIVATE LTD. FE 3011B, F TOWER BHARAT DIAMOND BOURSE BKC BANDRA (E) MUMBAI 400 051 PAN/GIR NO. AABCL5114E (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI PADMAPANI BORA ASSESSEE BY NONE DATE OF HEARING 08 / 11 /2019 DATE OF PRONOUNCEMENT 08 / 11 /2019 / O R D E R PER M. BALAGANESH (A.M) : BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE REVENUE SEEKS TO RECALL THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO.5931/MUM/2017 DATED 28/02/2019. THE FO LLOWING IS AN ERROR THAT HAD CREPT IN IN THE ORDER OF THE TRIBUNAL ACCORDING TO THE REVENUE. 3. THE HON'BLE ITAT VIDE ORDER DATED 28.02.2019 DISPOSED OFF THE ABOVEMENTIONED APPEAL UPHOLDING THE ACTION OF THE LD. CIT(A) AND HENCE, DISMISSING THE APPEAL OF THE DEPARTMENT. WHILE DISCUSSING THE FACTS IN ITS ORDER, THE HON'BLE TRIBUNAL INTER ALIA OBSERVED AS FOLLOWS IN PARA NO.5 (PAGE 9) OF THE ORDER: M A NO. 498/MUM/2019 M/S. LEO SCHACHTER DIAMONDS INDIA PVT. LTD., 2 'WE FIND THAT IN THE SIMILAR FACTS AND CIRCUMSTANCES, THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE A. YRS 2010 - 11 AND 2012 - 13 HAD HELD THAT SINCE THERE WAS NO TP ADJUSTMENT, THERE CANNOT BE ANY LEVY OF PENALTY U/S 271G OF THE ACT. 4. HOWEVER, IT IS SEEN FROM THE CASE RECORDS AND FROM THE WEBSITE OF THE HON'BLE ITAT THAT THERE IS NO SUCH O RDER AS OBSERVED BY THE HON'BLE TRIBUNAL IN ASSESSEE'S CASE FOR AY 2010 - 11 AND 2012 - 13. HENCE, THE ORDER OF THE HONBLE ITAT TO THE EXTENT OF THE SAID OBSERVATION SUFFERS FROM A MISTAKE APPARENT FROM RECORD WHICH IS WITHIN THE PURVIEW OF PROVISIONS OF THE SECTION 254(2) OF THE ACT. 2. WE FIND FROM THE PERUSAL OF THIS TRIBUNAL ORDER THAT THIS TRIBUNAL IN PARA 5 HAD CATEGORICALLY STATED THAT FOR A.YRS. 2010 - 11 AND 2012 - 13, THE LD. TPO VIDE ORDERS DATED 31/12/2015 AND 25/01/2016 RESPECTIVELY HAD NOT EVEN INI TIATED ANY PENALTY PROCEEDINGS U/S.271G OF THE ACT UNDERSTANDING THE PRACTICAL DIFFICULTY OF THE ASSESSEE BEFORE US THAT CERTAIN DOCUMENTS COULD NOT BE MAINTAINED IN ACCORDANCE WITH RULE 10B OF THE RULES. WE ALSO FIND THAT THIS TRIBUNAL HAD PLACED RELIANCE ON THE CO - ORDINATE BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF DCIT VS. FIRESTONE INTERNATIONAL PVT. LTD. IN ITA NO.5304/MUM/2016 FOR A.Y.2011 - 12 DATED 01/12/2018 WHEREIN IT HAD HELD THAT WHEN THERE IS NO TP ADDITION MADE , THERE CANNOT BE ANY LEVY OF PENALTY U/S.271G OF THE ACT FOR NON - MAINTENANCE OF CERTAIN RECORDS. WE FIND THAT THE LD. D R AT THE TIME OF HEARING BE FORE US COULD NOT POINT OUT ANY EVIDENCE IN SUPPORT OF THE MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE. WE ALSO FIND TH AT THE LD. DR WAS NOT ABLE TO POINT OUT ANY ERROR IN THE SAID ORDER PASSED BY THIS TRIBUNAL. HENCE, WE HOLD THAT THERE IS NO ERROR THAT HAD CREPT IN IN M A NO. 498/MUM/2019 M/S. LEO SCHACHTER DIAMONDS INDIA PVT. LTD., 3 THE ORDER PASSED BY THIS TRIBUNAL WARRANTING RECTIFICATION U/S.254(2) OF THE ACT. 3. IN THE RESULT, MISC ELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 / 11 /201 9 SD/ - ( SAKTIJIT DEY ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 08 / 11 / 2019 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//