Assistant Commissioner of Income-tax, V. M/s. Kakade Construction Co., Pune

MA 65/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3715 (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: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-08-2015
• Assessment Year: misc
• Appeal Filed On: 21-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HARI KRISHAN SINGH
• Section: 153A

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.65/PN/2014 (ARISING OUT OF ITA NOS.99 & 100/PN/2013) & & / ASSESSMENT YEARS : 2005-06 & 2006-07 ACIT, CENTRAL CIRCLE-2(2), PUNE . / APPLICANT V/S M/S. KAKADE CONSTRUCTION COMPANY, KAKADE CAPITAL, 1205, BEHIND SHIROLE PETROL PUMP, NEAR P. JOG CLASSES OF J.M. ROAD, SHIVAJINAGAR, PUNE 411 005 PAN NO. AABFK7509F . / RESPONDENT / APPLICANT BY : SHRI RAJESH DAMOR / DEPARTMENT BY : SHRI HARI KRISHAN 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. 99 & 100/PN/2013 FOR ASSESSMENT YEARS 2005-06 & 2006 -07 RESPECTIVELY ON THE GROUND THAT CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF THE TRIBUNAL. / DATE OF HEARING : 11.09.2015 / DATE OF PRONOUNCEMENT:16.10.2015 2 MA NO.65/PN/2014 2. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRING TO THE MISCELLANEOUS APPLICATION SUBMITTED THAT THE TRIBUNAL DELETE D THE PENALTY AMOUNTING TO RS.7,00,000/- FOR A.Y. 2005-06 AN D RS.1,24,87,500/- FOR A.Y. 2006-07 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 SMT. PRAMILA D. ASHTAKAR IN ITA NOS. 354 TO 358/PN/2010 ORDER DATED 14-09-2012. HOWEVER, THE FACT S IN THAT CASE ARE DIFFERENT FROM THE FACTS IN THE INSTANT CASE . FURTHER, THE TRIBUNAL IN M.A. NO.112/PN/2013 ORDER DATED 2 1- 06-2013 HAS ALREADY MADE CERTAIN MODIFICATIONS TO THE SAID ORDER. SINCE THE PENALTY HAS BEEN DELETED BY THE TRIBUN AL 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. PRA MILA D. ASHTAKAR HAS ALREADY BEEN MODIFIED, THEREFORE, THE ORDER O F THE TRIBUNAL SHOULD BE RECALLED 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 FOR A.Y. 2006-07. FURTHER, THE REVENU E HAS FILED AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT AND T HE HONBLE HIGH COURT HAS ALREADY ADMITTED THE SAID APPEAL. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR A.Y. 2006-07 SHOULD BE DISMISSED. SO FAR AS A.Y. 2005-06 IS CONCERNED, HE SUBMITTED THAT THE TRIBUNAL HAS DELETED TH E PENALTY OF RS.7 LAKHS BY RELYING ON VARIOUS DECISIONS OF HO NBLE HIGH COURT AND HAS NOT RELIED ON THE DECISION OF THE TRIBU NAL IN THE CASE OF SMT. PRAMILA D. ASTEKAR (SUPRA). 3 MA NO.65/PN/2014 4. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSEE IN THE INSTANT CASE HAD FILED ORIGINAL RETURN OF INCOME FOR A.Y. 200 5-06 ON 31-10-2005 DECLARING NIL INCOME AFTER CLAIMING DEDUCTIO N OF RS.6,83,253/- U/S.80IB(10) OF THE ACT. SUBSEQUENTLY, A SEARC H WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 11-02-20 09. IN RESPONSE TO NOTICE U/S.153A(A) THE ASSESSEE FILED THE RETU RN OF INCOME DECLARING NIL INCOME ON 09-08-2010. THE AO COMPLE TED THE ASSESSMENT U/S.143(3) R.W.S. 153A DETERMINING THE TOTA L INCOME AT RS.22,42,178/- BY MAKING VARIOUS ADDITIONS AND DISALLOWING THE DEDUCTION U/S.80IB(10). THE ASSESSEE DID NO T PREFER ANY APPEAL. SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T. ACT AND LEVIED PENALTY OF RS.7 LAKHS. 5. SIMILARLY, FOR A.Y. 2006-07 ALSO, THE ASSESSEE IN RESPONSE TO NOTICE U/S.153A(A) FILED RETURN OF INCOME DECLARING UNDISCLOSED INCOME OF RS.2,92,50,000/- AS AGAINST NIL INCOME DECLARED IN THE ORIGINAL RETURN FILED ON 31-10-2006. THE AO COMPLETED THE ASSESSMENT AT RS.2,82,13,487/-. THE ASSES SEE DID NOT PREFER ANY APPEAL AND THE AO THEREAFTER LEVIED PE NALTY OF RS.1,24,87,500/- U/S.271(1)(C) OF THE I.T. ACT. THE LD.CIT(A) UPHELD THE PENALTY LEVIED BY THE AO FOR BOTH THE YEARS. ON FURTHER APPEAL THE TRIBUNAL CANCELLED THE PENALTY FOR BOTH THE YEARS. WHILE THE TRIBUNAL CANCELLED THE PENALTY FOR A.Y. 2005 -06 AMOUNTING TO RS.7 LAKHS BY RELYING ON THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURALI AGRO PROD UCTS LTD., (SUPRA) AND VARIOUS OTHER DECISIONS, HOWEVER, FOR A.Y. 2006-07, THE TRIBUNAL CANCELLED THE PENALTY BY RELYING ON THE 4 MA NO.65/PN/2014 ORDER OF THE TRIBUNAL IN THE CASE OF SHRI SANJAY D. KAKAD E VIDE ITA NOS. 12 TO 15/PN/2013 ORDER DATED 30-04-2013. 6. SO FAR AS THE DELETION OF PENALTY OF RS.7 LAKHS FOR A.Y. 2005-06 IS CONCERNED, WE FIND THERE IS NO APPARENT MISTAK E IN THE ORDER OF THE TRIBUNAL SINCE VERY ELABORATE ORDER HA S BEEN PASSED WHILE CANCELLING THE PENALTY LEVIED OF RS.7 LAKHS U/S. U/S.271(1)(C) OF THE I.T. ACT. THE DECISION OF THE TRIBUNAL IN THE CASE OF SMT. PRAMILA D. ASTEKAR (SUPRA) HAS NOT BEEN FOLLOWED IN THIS YEAR. NO APPARENT MISTAKE HAS BEEN POINTED OUT B Y THE REVENUE FOR A.Y. 2005-06. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR A.Y. 2005-06 IS DISMISSED. 7. SO FAR AS THE DELETION OF PENALTY OF RS.1,24,87,500/- FOR A.Y. 2006-07 IS CONCERNED THE PENALTY WAS DELETED BY THE TRIBUNAL BY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI SANJAY D. KAKADE VIDE ITA NOS.12 TO 15/PN/2013 WHIC H IN TURN HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN THE CASE OF SMT. PRAMILA D. ASTEKAR. VIDE ORDER OF EVEN DATE IN M.A. NO.63/PN/2014 WE HAVE RECALLED THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI SANJAY D. KAKADE WHICH HAS BEEN FOLLOWED IN T HE CASE OF M/S. KAKADE CONSTRUCTION COMPANY, I.E. THE ASSESSE E IN THE INSTANT CASE. THEREFORE, FOLLOWING THE REASONINGS GIVEN THEREIN, WE RECALL THE ORDER OF THE TRIBUNAL IN THE CASE O F THE PRESENT ASSESSEE FOR FRESH ADJUDICATION. THE REGISTRY IS DIRECTED TO ISSUE NOTICES IN THE REGULAR COURSE OF HEARING. ACCOR DINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR A.Y. 2005-06 IS DISMISSED AND THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR A.Y. 2006-07 IS ALLOWED. 5 MA NO.65/PN/2014 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR A.Y. 2005-06 IS DISMISSED AND THE M.A. FOR A.Y. 2006-07 IS ALLOWED. 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// ./ ' ( / SR. PRIVATE SECRETARY (, IQ.KS / ITAT, PUNE