M/s. SM & SM Resorts N Hotels International Ltd., Indore V. THE DCIT (Central-1), Indore

MA 60/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9372 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 31-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.60/IND/2019 (ARISING OUT OF ITA NO.80/IND/2017) ASSESSMENT YEAR: 2012-13 M/S. SM & SM RESORTS N HOTELS INTERNATIONAL LTD. INDORE / VS. DCIT(CENTRAL - 1), INDORE ( APPELLANT ) ( RE VENUE ) P.A. NO. AAHCS5800L MA NOS.61 & 62/IND/2019 (ARISING OUT OF ITA NOS.88 & 89/IND/2017) ASSESSMENT YEARS: 2012-13 & 2013-14 SHRI DEEPAK KALRA 6, SHRIRAM NAGAR INDORE / VS. DCIT(CENTRAL - 1), INDORE ( APPELLANT ) (RE VENUE ) P.A. NO. ALGPK9075L APPELLANT BY S/SHRI SUMIT NEMA, SR. ADV. RE VENUE BY SHRI K.G. GOYAL , SR. D R MA NO.60 TO 62/IND/2019 SM RESORTS & DEEPAK KALRA 2 DATE OF HEARING: 22.11.2019 DATE OF PRONOUNCEMENT: 07.01.2020 / O R D E R PER KUL BHARAT, J.M: THESE MISC. APPLICATIONS ARE FILED BY ASSESSEE SEEKIN G FOR RECALLING OF THE ORDER OF THE TRIBUNAL DATED 10.01 .2019 PASSED IN ITA NO.78 TO 80/IND/2017 & OTHERS PERTAININ G TO ASSESSMENT YEAR 2012-13 & 2013-14. 2. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMIS SIONS AS MADE IN THE APPLICATION. 3. ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS BUT COULD NOT CONTROVERT THE SUBMISSION MADE IN THE MISC . APPLICATIONS FILED BY THE ASSESSEES BY BRINGING ANY CO NTRARY MATERIAL ON RECORD. 4. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORDS. FOR THE SAKE OF CLARITY MA NO.60 TO 62/IND/2019 SM RESORTS & DEEPAK KALRA 3 SUBMISSIONS MADE IN THE APPLICATIONS ARE REPRODUCED AS UNDER: 1. BY WAY OF THIS RECTIFICATION APPLICATION UNDER S ECTION 254(2) OF THE INCOME TAX ACT 1961, THE ASSESSEE PRA YS FOR RECTIFICATION OF THE ORDER DATED 10.01.2019 PASSED IN APPEAL NO.80/IND/2017 FOR THE PERIOD 2012-13. 2. ON THE GROUND THAT THE TWIN ISSUES ARGUED BEFORE THIS TRIBUNAL WERE: A) WHETHER PENALTY IS LEVIABLE U/S 271AAB AT ALL SINCE DISCLOSURE OF INCOME IN THE RETURN WAS NOT ON THE B ASIS OF ANY INCRIMINATING MATERIAL & B) WITHOUT PREJUDICE TO THIS GROUND IF PENALTY IS IN F ACT LEVIABLE THEN IT SHOULD BE ONLY @ 10% SINCE THE ASSESSEE HAS DISCLOSED THE MANNER OF EARNING INCOME, HAS OFFERED IT IN THE RETURN AND HAS PAID TAX THEREON AND HAS SUBMITTED D ETAILS BEFORE THE AO REGARDING THE MANNER OF EARNING THE S AID INCOME. 3. THE FIRST ISSUE HAS BEEN DECIDED AGAINST THE APP ELLANT. 4. HOWEVER THE SECOND ISSUE HAS NOT BEEN DECIDED BY THIS HON'BLE TRIBUNAL. THIS RECTIFICATION APPLICATION IS IN RESPECT OF OMISSION TO DECIDE THE QUANTUM OF RATE OF PENALTY U /S 271MB I.E. WHETHER IT WOULD BE 10% U/S 271MB(1)(A) OR 20% U/S 271MB(1)(B) OR 30% U/S 271MB (1)(C). 5. THE ISSUE IN RESPECT OF RATE OF PENALTY WAS RAIS ED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) IN PARA 3.6 & 3.7 HAD CONFIRMED THE LEVY OF PENALTY @ 30% ON THE GROUND THAT THE AS SESSEE HAS NOT EXPLAINED THE MANNER OF EARNING UNDISCLOSED INC OME. EVEN BEFORE THE LD. AO IT WAS DULY SUBMITTED THAT WHAT H AS BEEN ACTUALLY SURRENDERED IS ONLY DISALLOWANCES ESTIMATE D OUT OF VARIOUS EXPENSES AS DEBITED IN ACCOUNT CONSIDERING THE NATURE OF BUSINESS OF THE ASSESSEE CO.(CONSTRUCTION BUSINE SS). 6. THAT EVEN BEFORE THIS HON'BLE TRIBUNAL THE ISSUE WAS DULY ARGUED BY THE APPELLANTS' COUNSEL AND MOREOVER THE APPELLANT HAD FILED WRITTEN SUBMISSIONS BEFORE THIS HON'BLE T RIBUNAL( PAPER BOOK DATED 27/7/2018) WHEREIN ON PAGE 5 PARA 11 IT WAS DULY SUBMITTED AS UNDER: MA NO.60 TO 62/IND/2019 SM RESORTS & DEEPAK KALRA 4 ' WITHOUT PREJUDICE TO THE AFORESAID SUBMISSIONS AND WITH REFERENCE TO OUR GROUND NO.2 AS PER GROUNDS OF APPEAL, THE PENALTY IMPOSED IS EXCESSIVE, SINCE ALL THE CONDITI ONS AS SPECIFIED IN SECTION 271AAB (1)(A) STOOD SATISFIED AND THUS THE PENALTY WAS TO BE LEVIED @10% SINCE THE AMOUNT SURRENDERED WAS ADMITTED DURING THE COURSE OF SEARCH AND ALL THE TAXES WERE PAID BEFORE FILING THE RETURN OF INCOME.' 7. THAT IN THE PAPER BOOK THE ASSESSEE HAD ALSO ENCLOS ED THE LETTER FILED WITH ASSTT. DIRECTOR OF INCOME-TAX (IN V) -II STATING THE DETAILS AND BREAKUP OF SURRENDERED INCOME. (PG 10 T O 27 OF THE PAPER BOOK). THAT ON THE DATE OF HEARING ON 12 TH OCT 2018 ANOTHER COMPILATION WAS FILED CONTAINING JUDGEMENTS RELIED UPON, WHICH INTERALIA, CONTAINED A DECISION OF THIS HON'BLE TRI BUNAL RENDERED IN THE CASE OF KETI SANGAM INFRASTRUCTURE (I) LTD. WHICH DEALT WITH THE ISSUE OF DISCLOSURE OF MANNER OF EARNING INCOME U/S 271MB AND UNDER WHICH CIRCUMSTANCES IT CAN BE SAID THAT T HE MANNER OF EARNING HAS BEEN DISCLOSED. THUS THIS ISSUE OF QUAN TUM OF RATE OF PENALTY U/S 271MB @ 10% OR 20% OR 30% WAS ARGUED BE FORE THIS HON'BLE TRIBUNAL WITH SUPPORTING DOCUMENTS AND RELE VANT SUPPORTING DECISION AND WRITTEN SUBMISSION. THIS RE CTIFICATION APPLICATION IS CONFINED TO THE ISSUE OF NON-DECISIO N OF THE SECOND ISSUE I.E. THE RATE OF PENALTY. 8. THAT THE ISSUE OF RECTIFICATION BEING PERMISSIBLE O N ACCOUNT OF NONCONSIDERATION OF GROUND AND SUBMISSIONS ON RECOR D IS FAIRLY SETTLED AND FOR THE KIND CONSIDERATION OF THIS HON' BLE TRIBUNAL TWO RELEVANT DECISIONS OF THE HON'BLE JURISDICTIONAL HI GH COURT ARE EXTRACTED HEREUNDER: I) CIT V MITHALAL ASHOK KUMAR [(1986)158 ITR 755 (MP)] , HOWEVER, IN CIT V MITHALAL ASHOK KUMAR [(1986)158 ITR 755 (MP)], THE TRIBUNAL WAS HE JUSTIFIED, IN EXERCISE OF ITS POWER UNDER SECTION 254(2), IN SETTING ASIDE ITS ORIGINAL ORDER BECAUSE IT HAD COMMITTED CERTAIN MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. SIMILARLY IN H.H MAHARAJA MARTANT SINGH JU-DEO V CIT [(1988) 171 ITR 586 (MP)], THE TRIBUNAL REJECTED, ON CERTAIN GROUNDS THE CLAIM OF THE ASSESSEE IN RESPECT OF EXEMPTION FROM CAPITAL GAIN. THE ASSESSEE FIELD A RECTIFICATION APPLICATION FOR RECTIFYING THE TRIBUNAL ORDER. THE MA NO.60 TO 62/IND/2019 SM RESORTS & DEEPAK KALRA 5 TRIBUNAL PASSED AN ORDER SUBSTITUTING ITS EARLIER FINDINGS, WHICH WERE RECORDED BY IT UNDER SOME MISAPPREHENSION OR MISCONCEPTION, WITH FRESH FINDINGS. IT WAS HELD THAT IN THE FACTS OF THE CASE THE DECISION OF THE TRIBUNAL AMOUNTED TO AN ORDER OF RECTIFICATION AS CONTEMPLATED BY SECTION 254 (2) AND WAS NOT A REVIEW OF ITS EARLIER ORDER. II) CIT V ITAT, (1988) 172 ITR 158,161 (MP)]. THUS, IF A POINT WHICH IS MATERIAL FOR DETERMINING THE AMOUNT OF TAX IS PRESSED AND NOT CONSIDERED, IT WOULD CERTAINLY CONSTITUTE A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF THE AFORESAID SECTION 254(2) AND IF ON THE SAID MISTAKE BEING POINTED OUT BY THE ASSESSEE, THE TRIBUNAL HAS AMENDED ITS ORDER, IT IS OBVIOUSLY A CASE OF PASSING AN ORDER UNDER SECTION 254 (2) AND CANNOT BE TREATED TO BE AN ORDER OF REVIEW. 8. IN VIEW OF THE ABOVE SUBMISSIONS, IT IS HUMBLY P RAYED THAT THE ORDER DATED 10.1.2019 PASSED BY THIS HON'BLE BENCH BE KINDLY RECTIFIED BY DECIDING THE ISSUE RELATING TO RATE OF PENALTY IMPOSABLE U/S 271AAB I.E. WHETHER IT SHOULD BE @ 10 % U/S 271AAB (1)(A) OR 20% U/S 271AAB(1)(B) OR 30% U/S 27 1AAB. 5. WE FIND FORCE IN THE CONTENTION OF ASSESSEE THAT T HE SECOND ISSUED WAS NOT SPECIFICALLY DEALT WITH IN TRIBU NAL ORDER DATED 10.01.2019. THEREFORE, THE ORDER DATED 10.01.2019 IS RECALLED FOR LIMITED PURPOSE OF DECIDI NG AFORESAID ISSUE NO. 2 RAISED IN THE APPEALS OF THE ASSESS EES. THUS, THE APPEALS OF THE ASSESSEES I.E. ITANOS. 80,88 & 89/IND/2017 ARE RE-FIXED FOR HEARING ON 20.02.2020 FOR THE MA NO.60 TO 62/IND/2019 SM RESORTS & DEEPAK KALRA 6 ABOVE LIMITED PURPOSE ONLY, FOR WHICH NO SEPARATE NOTI CE SHALL BE ISSUED AS THE DATE OF HEARING HAS BEEN MENTIONE D IN THIS ORDER . 6. IN THE RESULT, MISC. APPLICATIONS FILED BY THE ASS ESSEES ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 07.01. 2020. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 07 / 01/2020 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE