DCIT, CENTRAL CIRCLE - 4(4), KOLKATA , KOLKATA vs. JAYASHREE JAYAKAR MOHANKA, LEGAL HEIR OF LATE LALIT MOHANKA, KOLKATA

- This Revenue’s miscellaneous application filed u/s. 254(2) of the Income Tax Appellate Tribunal Act, 1963, in short ‘the Act’ seeks to recall our order dated 31.07.2018 dismissing the main appeal to be involving lower than MA No209/Kol/2018 & DCIT, C.C.-4(4) Kol. Vs. Jayashree Jayakar Mohanka Page 2 the prescribed tax effect of ₹ 20 lac as per the CBDT latest Circular No.3/2018 dated11.07.2018. Heard both the parties. Case file perused.

The Revenue’s sole argument during the course of hearing is that the CBDT’s latter clarification dated 28.08.2018 has made it clear that above low tax circular does not apply “where addition relates to undisclosed foreign income / undisclosed foreign assets (including financial assets)/undisclosed foreign bank account as per clause 10(d) thereof. Mr. Damle vehemently contends during the course of hearing that the assessment in question has not culminated in any such addition and also that the main case is in the nature of penalty appeal in quantum proceedings. We find no merit in assessee’s twin arguments as the fact remains that the above stated clarification has defined the scope of low tax circular to be not applicable in a case relating to undisclosed foreign bank accounts. It has come on record that respondent’s predecessor in interest / original assessee late Shri Lalit Mohanka had not been disclosed his foreign bank account in question. We therefore treating our order dismissing the main appeal as involving low tax effect than ₹20 lac to be an error apparent on record. The same stands recalled. The Revenue’s main appeal ITA 1346/Kol/2018 is restored for hearing at its original number.

We now advert to Revenue’s main appeal with both parties consent. We notice that the original assessee Shri late Lalit Mohanka had expired on 07.10.2009 whereas the assessment in question stood framed much after that on 10.01.2015. He had demised much before the assessment as well as the impugned penalty levied on 18.03.2015 in other words. We quote hon'ble Madras high court’s decision in CIT vs. Lt.K.C. Verghese (TCA No.854 of 2017) dated 20.02.2018. {relied upon in CIT(A)’s order} that the impugned penalty u/s. 271(1)(c) of the Act could not be levied on a legal representative. We therefore decline the Revenue’s main appeal on this count alone. This Revenue’s appeal is dismissed.