Assistant Commissioner of Income-tax, V. Sanjay Dattatraya Kakade, Pune

MA 63/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3716 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-08-2015
• Assessment Year: misc
• Appeal Filed On: 21-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HARIKRISHNAN SINGH

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM $$ . / MA NO.63/PN/2014 (ARISING OUT OF ITA NOS.12 TO 15/PN/2013) & & / ASSESSMENT YEARS : 2003-04 TO 2006-07 ACIT, CENTRAL CIRCLE-2(2), PUNE . / APPLICANT V/S SHRI SANJAY D. KAKADE, 55/11, KAKADE PARADISE, ASHOK PATH LANE, NEW LAW COLLEGE ROAD, PUNE 411 004 PAN NO.ALNPK3325J . / RESPONDENT / APPLICANT BY : SHRI RAJESH DAMOR / DEPARTMENT BY : SHRI HARIKRISHNAN SINGH / ORDER PER R.K. PANDA, AM : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT IN ITA NOS. 12 TO 15/PN/2013 FOR ASSESSMENT YEARS 2003-04 TO 20 06-07 ON THE GROUND THAT CERTAIN MISTAKES HAVE CREPT IN THE ORD ER OF THE TRIBUNAL. / DATE OF HEARING : 11.09.2015 / DATE OF PRONOUNCEMENT:16.10.2015 2 MA NO.63/PN/2014 2. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRING TO THE MISCELLANEOUS APPLICATION SUBMITTED THAT THE TRIBUNAL DELETE D THE PENALTY LEVIED U/S.271(1)(C) OF THE I.T. ACT BY RELYING ON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF S MT. PRAMILA D. ASHTAKAR IN ITA NOS. 354 TO 358/PN/2010 ORDER DATED 14-09-2012. HOWEVER, THE FACTS IN THAT CASE ARE DIFFERENT FROM THE FACTS IN THE INSTANT CASE. FURTHER, THE TRIBUNAL IN M.A. NO.112/PN/2013 ORDER DATED 21-06-2013 HAS ALREADY MAD E CERTAIN MODIFICATION TO THE ORDER. SINCE THE PENALTY HAS B EEN DELETED BY THE TRIBUNAL SOLELY ON THE BASIS OF THE DECISION RENDERED IN THE CASE OF SMT. PRAMILA D. ASHTAKAR AND SINCE THE ORDER IN THE CASE OF SMT. PRAMILA D. ASHTAKAR HAS ALREADY BEEN MODIFIED, THEREFORE, THE ORDER OF THE TRIBUNAL SHOULD BE RECA LLED AND THE MATTER BE DECIDED ON MERITS. 3. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAN D STRONGLY RELIED ON THE ORDER OF THE TRIBUNAL. HE SUBMITTE D THAT A CONSCIOUS DECISION HAS BEEN TAKEN BY THE TRIBUNAL WHILE DELETING THE PENALTY LEVIED U/S.271(1)(C) OF THE I.T. ACT, 1961. FURTHER, THE REVENUE HAS FILED AN APPEAL BEFORE THE HON BLE BOMBAY HIGH COURT AND THE HONBLE HIGH COURT HAS ALREAD Y ADMITTED THE APPEAL. THEREFORE, THE MISCELLANEOUS APPLICAT ION FILED BY THE REVENUE SHOULD BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. IN THE INSTANT CASE, THE ASSESSEE HAS FILED HIS RET URN OF INCOME FOR A.Y. 2003-04 ON 03-02-2004 DECLARING INCOME OF RS.4,15,800/-. A SEARCH WAS CONDUCTED U/S.132 OF THE ACT ON 11-02-2009. IN RESPONSE TO NOTICE U/S.153A(A) THE ASSES SEE 3 MA NO.63/PN/2014 FILED THE RETURN OF INCOME ON 30-09-2010 DECLARING INCOME OF RS.12,25,900/- BY DECLARING ADDITIONAL INCOME OF RS.8,10,000/- AS HIS UNDISCLOSED INCOME FROM OTHER SOURCES. THE AO COMPLETED THE ASSESSMENT ACCEPTING THE INCOME SO DECLAR ED BY THE ASSESSEE. SUBSEQUENTLY, THE AO LEVIED PENALTY OF RS.3,60,000/- U/S.271(1)(C) ON THE ADDITIONAL INCOME SO DECLARED BY THE ASSESSEE AMOUNTING TO RS.8,10,000/-. SIMILAR PENALT Y HAS BEEN LEVIED BY THE AO AMOUNTING TO RS.31,60,520/- FOR A.Y. 2004-05, RS.12,29,430/- FOR A.Y. 2005-06 AND RS.3,40,61,240/- FOR A.Y. 2006-07 ON ACCOUNT OF SUCH ADDITIONAL INCOME DECLAR ED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.153A(A). PENA LTY WAS CONFIRMED BY THE CIT(A) FOR ALL THE YEARS AND ON FURTH ER APPEAL BY THE ASSESSEE THE TRIBUNAL, FOLLOWING THE DECISION IN THE CASE OF SMT. PRAMILA D. ASHTAKAR VIDE ITA NOS. 354 TO 358/PN/2010 ORDER DATED 14-09-2012, DELETED THE PENALT Y HOLDING THAT NO PENALTY CAN BE LEVIED IN THE INSTANT CASE SINCE THE INCOME DECLARED IN RESPONSE TO NOTICE U/S.153A HAS B EEN ACCEPTED BY THE AO AND THE DECLARATION IS NOT BASED ON ANY MONEY, JEWELLERY, BULLION OR ANY OTHER VALUABLE ARTICLES DETEC TED OR SEIZED IN THE COURSE OF SEARCH OPERATION AND THE ASS ESSMENT YEAR INVOLVED IS PRIOR TO THE INTRODUCTION OF EXPLANATION 5A BROUGHT TO THE STATUTE BOOK W.E.F. 01-06-2007, I.E. FROM ASSESSMENT YEAR 2007-08. SINCE THE ORDER OF THE TRIBUN AL IN THE CASE OF SMT. PRAMILA D. ASHTAKAR HAS ALREADY BEEN MOD IFIED VIDE M.A.NO.112/PN/2013 ORDER DATED 21-06-2013 DUE TO CERTAIN ERRORS CREPT IN THAT ORDER, THEREFORE, MISTAKE H AS CREPT IN THIS ORDER ALSO WHICH REQUIRES RECTIFICATION. WE, THEREFORE, DEEM 4 MA NO.63/PN/2014 IT PROPER TO RECALL THE ORDER OF THE TRIBUNAL FOR ADJUDICAT ION OF THE ISSUE ON MERIT. 5. SO FAR AS THE ARGUMENT OF THE LD. COUNSEL FOR THE ASS ESSEE THAT THE REVENUE HAS FILED AN APPEAL BEFORE THE HONBLE H IGH COURT AND THE HONBLE HIGH COURT HAS ADMITTED THE APPE AL FILED BY THE REVENUE, THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SHOULD NOT BE ENTERTAINED IS CONCERNED, THE SAME IN OUR OPINION, IS WITHOUT ANY FORCE IN VIEW OF VARIOUS DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT. 6. IN THE CASE OF M/S. R.W. PROMOTIONS PVT. LTD. VS. ITO IN WRIT PETITION NO.2238/2014 ORDER DATED 08-04-2015 THE H ONBLE HIGH COURT HAS HELD THAT MERELY BECAUSE THE ASSESSEE HAS CHALLENGED THE ORDER OF THE TRIBUNAL IN AN APPEAL U/S.260A OF THE I.T. ACT, 1961 BEFORE THE HIGH COURT DOES NOT MEAN THAT THE POWER UNDER SUB-SECTION (2) OF SECTION 254 CANNOT BE INV OKED EITHER BY THE ASSESSEE OR BY THE REVENUE/ASSESSING OFFI CER. SUCH A POWER ENABLES THE TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND MAKE AMENDMENTS. THAT IN A GIVEN CASE WOULD NOT ONLY SAVE PRECIOUS JUDICIAL TIME OF TH E TRIBUNAL BUT EVEN OF THE HIGHER COURT. SIMILAR VIEW HAS BEE N TAKEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ACCRA INVESTMENT (P) LTD. VS. ITO VIDE ITA NO.953/PN/2012 ORDE R DATED 15-01-2013 WHICH HAS BEEN FOLLOWED BY THE COORDI NATE BENCH OF THE TRIBUNAL IN THE CASE OF COCA COLA INDIA PVT. LTD. VS. DCIT IN M.A. NO.150/PN/2010 FOR A.YRS. 1998-99 TO 2004-05 ORDER DATED 06-12-2013. IN VIEW OF THE ABOVE, THE ARGU MENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE APPEAL HAS B EEN FILED 5 MA NO.63/PN/2014 BY THE REVENUE BEFORE THE HONBLE HIGH COURT, THEREFORE, THE MISCELLANEOUS APPLICATION SHOULD NOT BE ENTERTAINED AND BE DISMISSED IS DEVOID OF MERIT AND THEREFORE IS REJECTED. 7. IN VIEW OF OUR ABOVE REASONINGS, WE RECALL THE ORDER O F THE TRIBUNAL IN ITA NOS.12 TO 15/PN/2013. THE REGISTRY IS DIR ECTED TO FIX THE APPEALS FOR HEARING IN REGULAR COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ACCORDINGLY ALLOWED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16-10-2015. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 16 TH OCTOBER, 2015. LRH'K ( )+$ ,$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) CENTRAL CIRCLE , PUNE 4. THE CI T , CENTRAL CIRCLE , PUNE 5. $ ''(, (, IQ.KS / DR, ITAT, A PUNE; 6. , / GUARD FILE. / BY ORDER , $ ' //TRUE COPY// $ ' //TRUE COPY// ./ ' ( / SR. PRIVATE SECRETARY (, IQ.KS / ITAT, PUNE