ACIT-17(2), MUMBAI vs. SHRI KISHORE VITHALDAS, MUMBAI

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ITA 6285/MUM/2017Status: DisposedITAT Mumbai27 November 2019AY 2006-075 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s order, finding no illegality in deleting the penalty due to a defective notice. Furthermore, the quantum of income itself had been ordered to be deleted in the assessee's own case for the same assessment years.

What were the facts?

The Revenue appealed against the deletion of penalty by the CIT(A) for concealment of income. The assessee had undisclosed foreign bank accounts, leading to reassessment and penalty imposition. The CIT(A) deleted the penalty based on a defective notice.

What were the issues?

Whether the CIT(A) was justified in deleting the penalty due to a defective notice, and whether the penalty could stand if the underlying income addition was deleted.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “H” BENCH, MUMBAI

Before: SHRI RAJESH KUMAR, AM & SHRI AMARJIT SINGH, JM

Hearing: 25/11/2019Pronounced: 27/11/2019

O R D E R PER BENCH: The revenue has filed the above mentioned appeals against the order dated 16.06.2017 passed by the Commissioner of Income Tax (Appeals)-28, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Ys. 2006-07 & 2007-08 in which the penalty levied by the AO has been order to be deleted. The revenue has filed the present appeal against the order dated 2. 16.06.2017 passed by the Commissioner of Income Tax (Appeals)-28, ITA. Nos .6285 & 6286/M/2017 A.Y. 2006-07 & 2007-08 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Ys. 2006-07 in which the penalty levied by the AO has been order to be deleted.

3.

The revenue has raised the following grounds: - “

1.

1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) justified in deleting penalty levied u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income and concealment of income merely stating that limb was not clear for which penalty was levied instead of adjudicating on merits.

2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in holding that limb/esact charge was not clear for which penalized without appreciating the fact that the assessee had never raised this query before the AO.

3. The appellant prays that the order for the AO should be restored and order of the CIT(A) should be set aside.

4. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." The brief facts of the case are that the assessee filed his return 4. of income on 31.10.2006 declaring total income to the tune of Rs.93,14,831/- relevant to the A.Y. 2006-07. The assessment of the assessee was reopened upon information received from the DDIT(Inv.), Unit-III (3), Mumbai on 19.02.2013 in which it was conveyed that the appellant along with his family members was holding Bank Account with Hong Kong-Shangai Bank Corporation (HSBC), Geneva which was not disclosed the return of income. On the basis of the said information, the assessment of the assessee was reopened for the A.Y. 2006-07 & 2007-08. Thereafter, the assessment & 6286/M/2017 A.Y. 2006-07 & 2007-08 of the assessee was completed after assessing the total income in sum of Rs.14,75,59,256/- for the A.Y. 2006-07 as well as income of Rs.3,15,82,311/- for the A.Y. 2007-08. Thereafter, the penalty proceeding was initiated by issuance of notice and after the reply of the assessee, the penalty in sum of Rs.4,96,68,446/- was levied. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who deleted the penalty, therefore, the revenue has filed the present appeal before us.

5.

We have heard argument advanced by the Ld. Representative of the parties and perused the record. We noticed that the CIT(A) has deleted the penalty on the basis of defective notice. The AO nowhere tick off any limb to levy the penalty. The CIT(A) has placed reliance upon the decision of the Hon’ble ITAT in the case of Meherjee Cassinath Holdings P. Ltd. Vs. ACIT, Circle-4(2) and CIT-11 Vs. Samson Perinchery and the order of the ITAT, Mumbai Bench in vide order dated 28.04.2017. The above mentioned decisions have discussed the latest law settled by the Hon’ble High Court of Bombay as well as Apex Court. So we nowhere found any illegality and infirmity in the order passed by the CIT(A) in question. At the time of arguments, the Ld. Representative of the assessee has filed the copy of the order dated 16.10.2019 passed by the Hon’ble ITAT in the assessee’s own case in ITA. No.7397/2016 for the A.Y.2007-08 and ITA. No.5661/M/2017 for the A.Y. 2006-07 in which the quantum has been order to be deleted.

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