Deputy Commissioner of Income-tax, Central Circle -2(2), Pune V. Sanjay D. Kakade, Pune

MA 85/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3779 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAPANA PARVEEN
• Assessee Lawyers: HARI KRISHAN
• Section: 132; 271(1)(c); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / MA NOS.84 & 85/PUN/2018 (ARISING OUT OF ITA NOS.12 & 13/PUN/2013) / ASSESSMENT YEARS : 2003-04 & 2004-05 DCIT, CENTRAL CIRCLE-2(2), PUNE. ....... / APPELLANT / V/S. SANJAY D. KAKADE, 55/11A, KAKADE PARADISE, ASHOK PATH LANE, NEW LAW COLLEGE ROAD, PUNE-411004. PAN : ALNPK3325J / RESPONDENT REVENUE BY : SMT. SHAPANA PARVEEN ASSESSEE BY : SHRI HARI KRISHAN / DATE OF HEARING : 15.02.2019 / DATE OF PRONOUNCEMENT : 15.02.2019 / ORDER PER D. KARUNAKARA RAO, AM: THESE MISCELLANEOUS APPLICATIONS ARISE FROM THE ASSESSEES APPEALS IN ITA NOS.12 & 13/PUN/2013 VIDE ORDER DATED 28.02.2018 FOR THE ASSESSMENT YEARS 2003-04 & 2004-05 RESPECTIVELY. 2. THE REVENUE THROUGH THESE MAS PRAYED FOR RECTIFYING THE COMPOSITE ORDER OF THE TRIBUNAL DATED 28.02.2018 WITH RESPECT TO THE DECISIONS RELATING TO THE ASSESSMENT YEARS 2003-04 AND 2004-05 (SUPRA). IN THE ORDER, THE APPEALS OF THE ASSESSEE FOR THE RESPECTIVE ASSESSMENT 2 MA NOS.84 & 85/PUN/2018 YEARS (I.E. A.Y. 2003-04 AND 2004-05) WERE ADJUDICATED AGAINST THE REVENUE AND THE PENALTIES LEVIED U/S 271(1)(C) OF THE ACT WERE DELETED BY THE TRIBUNAL. 3. BEFORE US, LD. DR FOR THE REVENUE READ OUT THE SAID FINDINGS OF THE TRIBUNAL AND INFORMED THAT THE ORDER OF THE TRIBUNAL DATED 28.02.2018 (SUPRA) WAS A COMPOSITE ORDER AND THE PENALTIES U/S 271(1)(C) FOR THE ASSESSMENT YEARS 2005-06 ONWARDS WERE CONFIRMED. HOWEVER, THE PENALTY U/S 271(1)(C) FOR ASSESSMENT YEARS 2003-04 AND 2004-05 WERE DELETED. THE TRIBUNAL HELD THAT THE PENALTIES ARE NOT SUSTAINABLE LEGALLY ON THE RELATABLE INCOME IS NOT VALIDLY ADDED BY THE ASSESSING OFFICERS IN THE ASSESSMENT MADE U/S 153A OF THE ACT. THE INTEREST INCOME RELATABLE TO THE FDS ARE NOT BORNE OUT OF THE INCRIMINATING MATERIAL GATHERED DURING THE SEARCH ACTION U/S 132 OF THE ACT. IT IS THE CASE OF THE REVENUE IN THESE MAS THAT PENALTY U/S 271(1)(C) FOR ALL THE YEARS SHOULD BE CONFIRMED CONSIDERING THE SIMILARITY OF THE FACTS AND APPLICABILITY OF THE HONBLE CALCUTTA HIGH COURT JUDGEMENT IN THE CASE OF CIT VS. PRASANNA DUGAR (2015) 371 ITR 19 (CAL.). LD. DR, HOWEVER, SUBMITTED THAT THE TRIBUNAL DISCUSSED THE UN-SUSTAINABLE NATURE OF THE ADDITIONS OF INTEREST INCOME IN THESE TWO ASSESSMENT YEARS AND ALSO COMMENTED ABOUT THE ABSENCE OF ANY INCRIMINATING MATERIAL IN SUPPORT OF THE ADDITIONAL INCOME SUO MOTU OFFERED BY THE ASSESSEE IN THE RETURNS OF INCOME. 3 MA NOS.84 & 85/PUN/2018 4. IN REPLY TO THE ABOVE ARGUMENTS OF THE LD. DR, THE LD. AR FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE CONTENTS OF PARA 11 AT PAGE 22 OF THE ORDER OF THE TRIBUNAL (SUPRA). RELEVANT TO ASSESSMENT YEAR 2003-04, THE LD. AR READ OUT THE FOLLOWING EXTRACTS :- 11. . .. THUS, LEGALLY SPEAKING, THE ADDITION OF RS.8,10,000/- IS NOT OTHERWISE SUSTAINABLE IN THIS NON-ABATED ASSESSMENT FOR A.Y. 2003-04 BUT FOR THE CONCESSIONS MADE BY THE ASSESSEE. 5. SIMILAR FINDING GIVEN BY THE TRIBUNAL FOR ASSESSMENT YEAR 2004-05 ALSO IN PARA 14 AT PAGE 31 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA). 6. ON HEARING BOTH THE SIDES, WE FIND THE TRIBUNAL ALREADY OBSERVED THE UN-SUSTAINABILITY OF THE ADDITIONAL INCOME OF INTEREST INCOME RELATABLE TO THE FDS IN THE BANKS IN THE PRESENT SEARCH ASSESSMENT MADE U/S 153A OF THE ACT, IF THE SAME WERE TO BE CONTESTED BEFORE US. THERE IS NO INCRIMINATING MATERIAL TO SUPPORT THE SAID INTEREST INCOME. THIS INCOME IN BOTH ASSESSMENT YEARS, WAS SUO MOTU OFFERED THE INCOME IN THE RETURNS OF INCOME FILED U/S 153A OF THE ACT FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 FOR THE REASONS KNOWN TO THE ASSESSEE. CONSIDERING THE WELL-CONSIDERED DECISION OF THE TRIBUNAL BY PASSING A SPEAKING ORDER ON THIS ISSUE, WE ARE OF THE OPINION THAT OUR INTERFERENCE, IF ANY, ON THE SAID ORDER, WILL AMOUNT TO THE REVIEW THE ORDER. THE SAME IS NOT PERMITTED U/S 254(2) OF THE ACT. ACCORDINGLY, BOTH THE MAS FILED BY THE REVENUE ARE DISMISSED. 4 MA NOS.84 & 85/PUN/2018 7. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15 TH DAY OF FEBRUARY, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 15 TH FEBRUARY, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-12, PUNE. 4. THE CIT, CENTRAL, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.