RAVINDRA WALIA,MUMBAI vs. ASSTT COMMISSIONER OF INCOME TAX-11(1), MUMBAI
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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI B R BASKARAN, AM & MS. KAVITHA RAJAGOPAL, JM
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI B R BASKARAN, AM AND MS. KAVITHA RAJAGOPAL, JM ITA Nos. 1099 & 1100/Mum/2022 (Assessment Years: 2008-09 & 2007-08)
Ravindra Walia Asst. CIT-16(1) Flat No. 15, 10th Floor, Menoti Mahal, Mumbai Near Aarya Samaj Mandir, Vs. Opp. Being Human Store, Santacruz (W), Mumbai-400 054 PAN/GIR No. AAJPW 9207 C (Appellant) (Respondent) :
Assessee by : Shri Hiro Rai Revenue by : Shri Soumendu Kumar Dash
Date of Hearing : 30.06.2023 Date of Pronouncement : 22.09.2023
O R D E R Per Kavitha Rajagopal, J M:
These appeals have been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal
Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Years (‘A.Y.’ for short) 2007-08 and 2008-09.
The assessee has challenged the order of the ld. CIT(A) in confirming the levy of
penalty u/s. 271(1)(c) of the Act by the learned Assessing Officer ('ld.A.O.' for short) on account of unexplained expenditure, unaccounted cash, expenses and bank deposits. As both the appeals are on identical facts, we hereby pass a consolidated order by taking ITA No. 1100/Mum/2022 as the lead case.
2 ITA Nos. 1099 & 1100/Mum/2022 (A.Ys.08-09 & 07-08) Ravindra Walia vs. Asst. CIT 3. The brief facts are that the assessee is an individual and a proprietor of a film
production company by the name M/s.Rising Star Entertainment. The assessee has filed
his return of income dated 29.10.2007, declaring a loss at Rs.1,55,00,270/- and the same
was processed u/s. 143(1) of the Act. The assessee’s case was selected for scrutiny and
the assessment order dated 29.12.2009 was passed u/s. 143(3) of the Act where the ld.
A.O. had determined the total income at Rs.2,23,71,500/- by making various
additions/disallowances. The ld. A.O. also initiated the penalty proceedings and thereby
passed the penalty order u/s. 271(1)(c) of the Act dated 28.03.2012, where the ld. A.O.
had levied a penalty of Rs.1,27,50,502/-.
The assessee was in appeal before the ld. CIT(A), challenging the penalty order by
the ld. A.O.
The first appellate authority upheld the order of the ld. A.O.
The assessee is in appeal before us, challenging the impugned order.
The learned Authorised Representative ('ld. AR' for short) for the assessee
contended that the ld. A.O. had levied penalty on the addition made towards unexplained
expenditure amounting to Rs.2,88,14,556/- and unaccounted cash expenses and bank
deposits amounting to Rs.90,59,009/- and also an additional penalty was levied for the
difference of Rs.59,009/- on the ground of concealment of income. The ld. AR contended
that the assessee has neither concealed the income nor has filed inaccurate particulars.
The ld. AR for the assessee argued on ground no. 3 being the legal ground where it was
contended that the ld. A.O. has failed to strike out the irrelevant limb of the impugned
3 ITA Nos. 1099 & 1100/Mum/2022 (A.Ys.08-09 & 07-08) Ravindra Walia vs. Asst. CIT notice u/s. 274 r.w.s. 271 of the Act dated 29.12.2009. The ld. AR relied on the order of
the Hon'ble Jurisdictional High Court in the case of Mohd. Farhan A. Shaikh vs. Dy. CIT
[2021] 320 CTR (Bom) (FB) 26 wherein it was held that non striking of the irrelevant
limb vitiates the penalty proceedings.
The learned Departmental Representative ('ld.DR' for short), on the other hand,
controverted the said facts and stated that the ld. A.O. has levied penalty for the reason
that the assessee has concealed the particulars of his income as well as furnished
inaccurate particulars. The ld. DR further stated that the assessee has been non compliant
throughout the assessment proceedings. The ld. DR relied on the orders of the lower
authorities.
We have heard the rival submissions and perused the materials available on
record. It is observed that there was a survey action u/s. 133A of the Act conducted on
the assessee where certain incriminating documents containing entries of expenditure
expenses amounting to Rs.2,88,14,556/- under various heads were found. The assessee
had claimed it to be merely an estimate of expense and not the actual expenditure
incurred. The assessee had also declared additional amount of Rs.90 lacs during the year
under consideration for which the ld. A.O. had made an addition of Rs.3,78,80,282/-
along with the difference of Rs.59,009/-. The assessee has also contended that the copies
of the impounded documents pertaining to the estimation of expenses were not furnished
to the assessee during the survey proceedings. The assessee has also challenged the
quantum addition made by the ld. A.O.
4 ITA Nos. 1099 & 1100/Mum/2022 (A.Ys.08-09 & 07-08) Ravindra Walia vs. Asst. CIT 10. In light of the above facts, the ld. A.O. had initiated the penalty proceedings for
the additions made by the ld. A.O. and vide order dated 28.03.2012 levied the impugned
penalty of Rs.1,7,50,502/- being 100% of the tax sought to be evaded on the income of
Rs.3,78,80,282/- on the ground that the assessee has concealed the particulars of his
income by furnishing inaccurate particulars as per the provision of section 271(1)(c) of
the Act.
The ld.CIT(A), on the other hand, has upheld the penalty levied by the ld. A.O. on
the ground that the ld. CIT(A) in the quantum appeal had confirmed the addition made by
the ld. A.O. and the Tribunal vide an ex parte order dated 19.04.2019 had set aside the
appeal back to the file of the ld. CIT(A) and subsequently the addition was confirmed by
the ld. CIT(A) vide his order dated 15.03.2022. The ld. CIT(A) in an appeal against the
penalty order has held that the assessee has concealed the particulars of his income which
were unearthered only during the survey proceeding u/s. 133A of the Act and the same
was not found in the books of accounts. The ld. CIT(A) further held that one of bank
account of the assessee was also not included in the books of accounts and that the
assessee has removed certain entries pertaining to cash from his computer during the year
under consideration. The ld. CIT(A) held that there was concealment of income and as a
consequence was by furnishing inaccurate particulars of income of the assessee and,
hence, the ld. A.O. had rightly mentioned that it was a case of concealment of income by
furnishing inaccurate particulars. The ld. CIT(A) upheld the penalty levied by the ld.
A.O.
5 ITA Nos. 1099 & 1100/Mum/2022 (A.Ys.08-09 & 07-08) Ravindra Walia vs. Asst. CIT 12. It is evident that the impugned notice dated 29.12.2009 relevant to A.Y. 2007-08
was issued by ld. A.O. without striking out the irrelevant limb thereby not specifying as
for what reason penalty in the case of the assessee was levied. The ld. AR placed reliance
on the full bench decision of the Hon'ble Jurisdictional High Court in the case of Mohd.
Farhan A. Shaikh (supra), wherein it was held that non striking of the inapplicable
ground in the notice would vitiates the penalty proceedings. The propositions laid down
by the Hon’ble High Court are that there should be no ambiguity caused in the mind of
the assessee due to the non striking of the inapplicable portion of the notice. It was
further held that it was a mandatory procedure which ought to have been adhered while
issuing the statutory notice.
From the above observation, we are of the considered opinion that the facts of the
assessee’s case is squarely covered by the decision of the Hon'ble High Court in the case
of Mohd. Farhan A. Shaikh (supra) where the ld. A.O. has failed to strike out the
irrelevant limb in the statutory notice issued for levy of penalty, thus, in our opinion is
not a curable defect and would vitiates the penalty proceeding in toto. We, therefore,
direct the ld. A.O. to delete the impugned penalty. As we have decided this issue on the
legal ground, the other grounds of appeal become academic in nature.
In the result, the appeal filed by the assessee is allowed.
ITA No. 1099/Mum/2022
The assessee has challenged the penalty levied u/s. 271(1)(c) of the Act made by
the ld. A.O. and upheld by the ld. CIT(A) on identical grounds as that in ITA No.
100/Mum/2022.
6 ITA Nos. 1099 & 1100/Mum/2022 (A.Ys.08-09 & 07-08) Ravindra Walia vs. Asst. CIT 16. The ld. AR for the assessee submitted that in the present case the ld. CIT(A)
upheld the penalty of Rs.8,60,000/- u/s. 271(1)(c) of the Act for which the ld. A.O. vide
letter dated 12.01.2018 had cancelled the penalty levied amounting to Rs.8,60,000/-. The
ld. AR further stated that as the penalty order vide already been cancelled, this appeal
filed by the assessee would become infructuous.
The ld. DR, had nothing to controvert the same. We, therefore, dismiss this appeal
as infructuous.
In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 22.09.2023
Sd/- Sd/-
(B R Baskaran) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 22.09.2023 Roshani, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER,
(Dy./Asstt. Registrar) ITAT, Mumbai
