GAZANFER ABDUL SHAIKH,MUMBAI vs. ITO 24(1)(1), MUMBAI

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ITA 1126/MUM/2017Status: DisposedITAT Mumbai31 May 2017AY 2006-074 pages

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

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal noted that the quantum addition of Rs. 10,02,800/- was set aside by a co-ordinate bench in the assessee's own case for the same assessment year. Consequently, the penalty imposed under Section 271(1)(c) does not survive.

What were the facts?

The Assessing Officer added cash deposits of Rs. 10,02,800/- as undisclosed income for the sale of an old car, which the assessee could not substantiate. Subsequently, a penalty was levied under Section 271(1)(c).

What were the issues?

Whether a penalty under Section 271(1)(c) can be sustained when the underlying addition to income has been set aside.

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, MUMBAI BENCH “G” MUMBAI

Before: SHRI MAHAVIR SINGH & SHRI N.K. PRADHAN

For Appellant: Mr. Dhaval Shah, AR
For Respondent: Mr. Pradeep Kumar Singh, DR
Hearing: 18/05/2017Pronounced: 31/05/2017

ORDER

PER N.K. PRADHAN, AM

1.

This is an appeal filed by the assessee. The relevant assessment year is 2006-07. The appeal is directed against the order of the Commissioner (Appeals) – 42, Mumbai and arises out of the order u/s 271(1)(c) of the Income Tax Act, 1961 (the ‘Act’).

2.

The grounds of appeal filed by the assessee read as under:

i. The Learned Commissioner of Income Tax (Appeal) has erred in holding that A.O. levying penalty u/s 271(1)(c) of Income Tax Act, 1961. ii. Both the lower authorities erred in ignoring assessment history of appellant while estimating Income u/s 144 of the Income Tax Act, 1961. iii. The Learned Commissioner of Income Tax (Appeal) has erred in sustaining the addition of Rs. 17,00,000/- being net profit on estimate basis.

3.

The learned Counsel of the assessee submits before us that the assessee would not like to press ground no 2 & 3 of the appeal. So the above grounds of appeal are dismissed as not pressed.

4.

Now we take up the 1st ground of appeal. Briefly stated, the facts of the case are that the Assessing Officer (A.O.) found that the assessee had deposited cash of Rs. 10,02,800/- in the Savings Bank A/c with the Development Credit Bank. In response to a query raised by the A.O., the assessee submitted that the cash deposits were from the sale of old car. However, the assessee could not furnish any evidence. Therefore, the A.O. treated the cash deposit as undisclosed income of the assessee and added the same to the total income. In appeal, the learned CIT(A) dismissed the assessee’s appeal on the ground that the source of money could not be explained. Thereafter the A.O. imposed a penalty of Rs. 3,18,020/- u/s 271(1)(c) of the Act.

5. Aggrieved by the order of the A.O., the assessee filed an appeal before the learned CIT(A). We find that the learned CIT(A) agreed with the reasons given by the A.O. and dismissed the appeal filed by the assessee.

6. Before us, the learned counsel of the assessee submits that the ITAT ‘G’ Bench, Mumbai in assessee’s own case for the same assessment year in has set aside the order of the learned CIT(A) and restored the matter to the A.O.

7.

The learned DR fairly agreed with the fact that the quantum proceeding has been set aside by the Tribunal.

8.

We have heard the rival submissions and perused the relevant material on record. We find that the Co-ordinate Bench in the assessee’s own case in quantum proceedings for the same assessment year has held as under:

4.4.2 In the light of the factual matrix of the case, as discussed above, we set aside the orders of the authorities below for A.Y. 2007-08 and direct the admission of additional evidence admittedly filed by assessee before the learned CIT(A) on the issue of cash deposits/cash withdrawals in assessee’s saving bank account with Development Credit Bank, Santa Cruz Branch, Mumbai and restore the matter for fresh examination to the file of A.O. in the light of our observations. Needless to add, A.O. is directed to afford assessee adequate opportunity of being heard and to file details/submissions required in this regard. It is accordingly ordered. In the result, assessee’s appeal for A.Y. 2006-07 is treated as allowed for statistical purpose.

9.

As the addition of Rs. 10,02,800/- made by the A.O. has been set aside by the Co-ordinate Bench, the penalty imposed by the A.O. u/s 271(1)(c) does not survive.

10.

In the result, the appeal is allowed.

Order pronounced in the open court on 31/05/2017.

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