Nanasaheb Shankarrao Gaikwad (HUF), Pune V. Deputy Commissioner of Income-tax, Circle - 2(1), Pune

MA 66/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6337 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: HARI KRISHAN
• Section: 6; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / MA NO S . 6 2 TO 65 /P U N/ 20 1 7 ARISING OUT OF ITA NO S . 2091 TO 2094 /P U N/20 1 3 ASSESSMENT YEAR S : 200 5 - 0 6 TO 2008 - 09 KEDAR NANASAHEB GAIKWAD, S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 ... APPLICANT PAN: AHOPG0632P VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE ... RESPONDENT . / MA NO. 66 /P U N/20 17 ARISING OUT OF ITA NO. 2099 /PUN/201 3 ASSESSMENT YEAR : 200 8 - 0 9 NANASAHEB SHANKARRAO GAIKWAD (HUF), S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 ... APPLICANT PAN: AACHG5734M VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE ... RESPONDENT . / MA NO S . 67 TO 70 /P U N/20 17 ARISING OUT OF ITA NO S . 2100 TO 2103/PUN/2013 ASSESSMENT YEARS : 2004 - 05 TO 2007 - 08 MRS. NANDA NANASAHEB GAI KWAD, S.NO.126/2, BANER ROAD, AUNDH, PUNE 411007 ... APPLICANT PAN: ADEPG5065A VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE ... RESPONDENT 2 M A NO S . 6 2 TO 70 /P U N/20 1 7 APPLICANT BY : S HRI HARI KRISHAN RESPONDENT BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 09 . 0 2 .201 8 / DATE OF PRONOUNCEMENT: 21 . 0 3 .201 8 / ORDER PER SUSHMA CHOWLA , JM : THE PRESENT MISCELLANEOUS APPLICATION S ARE MADE BY DIFFERENT APPLICANTS AGAINST CONSOLIDATED ORDER OF TRIBUN AL DATED 20.01.2017 . 2. THE APPEALS OF DIFFERENT ASSESSEE WERE DECIDED BY THE TRIBUNAL ON THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE TRIBUNAL HAD DECIDED THE ISSUE APPLYING THE RATIO LAID DO WN BY THE HONBLE HIGH COURT OF BOMBAY IN CIT VS. SMT. KAUSHALYA (199 5 ) 216 ITR 660 (BOM) THAT WHERE SATISFACTION WAS RECORDED WHILE COMPLETING ASSESSMENT PROCEEDINGS AS TO THE ASSESSEE HAVING CONCEALED HIS INCOME AND THE ASSESSEE WAS AWARE OF EXACT CHARGE AGAINST HIM, MERELY BECAUSE ONE OF PORTIONS WAS NOT STRUCK OFF IN THE NOTICE UNDER SECTION 274 OF THE ACT, DOES NOT MEAN THAT TH E SAID NOTICE WAS INAPPROPRIATE. THE APPLICANT IS AGGRIEVED BY THE ORDER OF TRIBUNAL IN NOT TAKING NOTE OF JUDGMENT S OF THE HO NBLE SUPREME COURT IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC) AND HONBLE HIGH COURT OF KARNATAKA IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 241 (KAR) ; BUT IN THE SAID PART ITSELF, THE APPLICANT REFERS TO THE DECISION OF T RIBUNAL IN SHRI KANHAIYALAL D JAIN VS. ACIT IN ITA NOS.1201 TO 1205/PUN/2014, RELATING TO ASSESSMENT YEARS 2003 - 04 TO 2007 - 08, ORDER DATED 30.11.2016 AND OBSERVED THAT JUDGMENTS OF THE HONBLE SUPREME COURT AND THE HONBLE HIGH COURT OF KARNATAKA IN CIT VS . SSAS EMERALD MEADOWS (SUPRA) HAD BEEN DISCUSSED. THE APPLICANT IS 3 M A NO S . 6 2 TO 70 /P U N/20 1 7 AGGRIEVED BY THE VIEW TAKEN BY THE TRIBUNAL , WHICH HE SAYS WAS TAKEN WITHOUT TAKING NOTE OF THE VIEW OF THE HONBLE SUPREME COURT ON THE CONTROVERSIES AND HENCE, MISTAKE APPARENT FROM RE CORD IN THE IMPUGNED ORDER OF TRIBUNAL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT HOWEVER, DURING THE COURSE OF HEARING OF MISCELLANEOUS APPLICATION GAVE UP THE ARGUMENTS MADE ON LEGAL GROUNDS WHEN IT WAS POINTED TO HIM THAT THE SAID DECISIO N OF THE HONBLE SUPREME COURT AND THE HONBLE HIGH COURT OF KARNATAKA IN CIT VS. SSAS EMERALD MEADOWS (SUPRA) HAD BEEN REFERRED IN THE DECISION IN THE CASE OF SHRI KANHAIYALAL D JAIN VS. ACIT (SUPRA), IN WHICH THE PRINCIPLE LAID DOWN BY THE HONBLE HIGH COURT OF BOMBAY IN CIT VS. SMT. KAUSHALYA (SUPRA) WAS APPLIED. VIDE PARA 8 OF MISCELLANEOUS APPLICATION, THE APPLICANT IS AGGRIEVED BY THE ORDER OF TRIBUNAL IN APPLYING THE RATIO LAID DOWN IN THE CASE OF MRS. SARITA KAUR MANJEET SINGH CHOPRA VS. ITO IN IT A NO.1562/PN/2013 AND HOLDING THE ASSESSEE TO BE EXIGIBLE TO LEVY OF PENALTY IN VIEW OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE APPLICANT IS AGGRIEVED THAT THE SAID RATIO HAS BEEN APPLIED WITHOUT COMPARING THE FACTS OF CASE. THE APPLICANT HOL D THAT THE FACTS OF PRESENT APPEAL HAVE NOT BEEN EXAMINED AT ALL BY THE BENCH AND HENCE MISTAKE APPARENT FROM THE RECORD HAS OCCURRED IN THE IMPUGNED ORDER OF TRIBUNAL. 3. THE PERUSAL OF ORDER OF TRIBUNAL REFLECTS THAT THE FACTS OF CASE HAVE BEEN NOTED I N PARA 7 OF THE ORDER DATED 20.01.2017 IN THE CASE OF NANASAHEB SHANKARRAO GAIKWAD AND IN PARA 16 IN THE CASE OF KEDAR NANASAHEB GAIKWAD. FURTHER, IN THE CASE OF NANDA NANASAHEB GAIKWAD, IT WAS HELD THAT FACTS AND ISSUES WERE IDENTICAL TO THE FACTS AND IS SUES IN THE CASE OF KEDAR NANASAHEB GAIKWAD . THE SAID OBSERVATIONS OF TRIBUNAL WERE BROUGHT TO THE NOTICE OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT, WHO HAD NOTHING TO REPLY. IN VIEW THEREOF, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATIO NS FILED BY DIFFERENT APPLICANTS AND ALL ARE REJECTED. 4 M A NO S . 6 2 TO 70 /P U N/20 1 7 4. BEFORE PARTING, WE MAY ALSO POINT OUT THAT THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT STATED THAT THE TRIBUNAL HAD ERRED IN NOT LOOKING TO THE FACT THAT WHILE INITIATING PENALTY PROCEEDINGS, THE ASSESSING OFFICER HAS FAILED TO STRIKE OFF LIMBS WHICH ARE NOT APPLICABLE TO SECTION 271(1)(C) OF THE A CT IN THE NOTICE ISSUED AND ALSO WHILE RECORDING SATISFACTION. IT WAS POINTED OUT TO THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT THAT NO SUCH GROUND OF APPEAL WAS RAISED IN THE SAID APPEALS BEFORE THE TRIBUNAL AND SUCH GROUND OF APPEAL CANNOT BE RAISED IN THE MISCELLANEOUS APPLICATION FOR ADJUDICATION. ACCORDINGLY, WE DISMISS THE PLEA OF APPLICANT. 5 . IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS OF APPLICANT ARE DISMISSED. ORDER P RONOUNCED ON THIS 21 ST DAY OF MARCH , 201 8 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST M ARCH , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - CENTRAL, PUNE ; 4 . THE CIT, CENTRAL, PUNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE