SUNIL GAVASKAR, MUMBAI v. ITO (IT) 3(1), MUMBAI

ITA 5103/MUM/2014 | 2001-2002
Pronouncement Date: 28-10-2016 | Result: Allowed

Appeal Details

RSA Number 510319914 RSA 2014
Assessee PAN ITANO5103T
Bench Mumbai
Appeal Number ITA 5103/MUM/2014
Duration Of Justice 2 year(s) 2 month(s) 22 day(s)
Appellant SUNIL GAVASKAR, MUMBAI
Respondent ITO (IT) 3(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 28-10-2016
Assessment Year 2001-2002
Appeal Filed On 06-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 5103 TO 5105/MUM/2014 ASSESSMENT YEAR: 2001-02 & 2002-03 SHRI. SUNIL GAVASKAR. 8-A SPORTSFIELD KHAN ABDUL GAFFOOR KHAN ROAD WORLI MUMBAI- 400 018 PAN:- AAAPG0001B VS. THE ITO (INTERNATIONAL TAXATION) - 3(1) 1 ST FLOOR ROOM NO. 114 SCINDIA HOUSE NAROTTAM MORARJI ROAD BALLARD ESTATE MUMBAI- 400 038. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. D.V. LAKHANI RESPONDENT BY : SHRI. A.K.KARDAM DATE OF HEARING: 20/10 / 2016 DATE OF PRONOUNCEMENT: 28/10/20 16 O R D E R PER RAM LAL NEGI JM THE APPELLANT/ASSESSEE HAS PREFERRED THESE A PPEALS AGAINST TWO ORDERS DATED 28/03/2014 PASSED BY THE CIT(APPEALS)-10 MUMB AI PERTAINING TO THE ASST. YEARS 2001-02 & 2002-03. ITA NO 5103 AND 5104 HAVE BEEN FILED AGAINST THE ORDERS OF THE LD. CIT(A) WHEREBY THE LD. CIT(A ) CONFIRMED THE PENALTY LEVIED BY THE A.O U/S 271 (1)(C) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). THE 3 RD APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDE R DATED 28/03/2014 PASSED BY THE LD. CIT(A)-10 MUMBAI WHEREBY THE LD . CIT(A) DISMISSED THE APPEAL FILED BY THE APPELLANT/ASSESSEE AGAINST ORDE R DATED 31/03/2011 PASSED BY THE A.O U/S 154 OF THE ACT 1961 BY RECTIFYING T HE ORDER PASSED U/S 147 R/W SECTION 147 OF THE ACT. SINCE ALL THE APPEALS PERTA IN TO THE SAME ASSESSEE AND 2 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 ISSUES INVOLVED ARE COMMON IN ALL THE THREE APPEALS THE SAME WERE CLUBBED AND HEARD TOGETHER AND ARE BEING DISPOSED OF BY THI S COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 5103/MUM/2014 A.Y. 2001-02 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME FOR THE A.Y. 2000-01 DECLARING TOTAL INCOME OF RS. 1 20 65 650/-. THE ASSESSMENT ORDER WAS ACCORDINGLY PASSED U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 1 20 65 650/- SUBSEQU ENTLY IT WAS NOTICE THAT THERE IS ESCAPEMENT OF INCOME BY CLAIMING DEDUCTION U/S 80-RR OF THE ACT TO THE TUNE OF RS. 97 71 079/- BEING 60% OF PROFESSION AL INCOME RECEIVED BY THE APPELLANT FROM FOREIGN SOURCES AMOUNTING TO RS. 1 6 2 85 132/-. THE ASSESSMENT WAS REOPENED AND AFTER DISALLOWING THE D EDUCTION OF RS. 97 71 079/- THE AO DETERMINED THE TOTAL INCOME AT R S. 2 18 57 339/- AND ALSO INITIATED PROCEEDING U/S 271(1)(C) FOR FURNISHING I NACCURATE PARTICULARS OF INCOME/CONCEALMENT OF INCOME. IN APPEAL THE LD. CIT (A) CONFIRMED THE PENALTY ORDER. THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL A GAINST IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1.ON THE FACTS & CIRCUMSTANCES OF THE CASE THE LEA RNED COMMR. OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE LE VY OF PENALTY U/S 271(1)(C) OF INCOME TAX ACT 1961. THE APPELLANT PR AYS THAT THE BASIC CONDITIONS OF SECTION 271(1)(C) ARE NOT SATISFIED A ND ORDER PASSED BY LEARNED ASSESSING OFFICER AND CONFIRMED BY THE COMM R. OF INCOME TAX(APPEALS) IS BAD IN LAW. THE APPELLANT PRAYS THA T PENALTY LEVIED U/S 271(1)(C) MAY BE DELETED. 2.ON THE FACTS & CIRCUMSTANCES OF THE CASE THE LEA RNED COMMR. OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE LE VY OF PENALTY U/S 3 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 271(1)(C) AT RS. 34 29 649/-. THE APPELLANT PRAYS T HAT THE PENALTY LEVIED U/S 271(1)(C) AMOUNTING TO RS. 34 29 649/- M AY BE DELETED. 3.ON THE FACTS & CIRCUMSTANCES OF THE CASE THE LEA RNED COMMR. OF INCOME TAX (APPEALS) HAS NOT DEALT WITH THE ISSUES RAISED BY THE APPELLANT IN THE WRITTEN SUBMISSIONS FILED IN THE A PPELLATE PROCEEDINGS. THE LEARNED COMMR. OF INCOME TAX (APPE ALS) HAS REJECTED THE SUBMISSIONS OF THE APPELLANT AND WITHO UT DEALING WITH THE CASE LAWS ON WHICH RELIANCE WAS PLACED BY THE A PPELLANT IN THE APPELLATE PROCEEDINGS. THE APPELLANT PRAYS THAT THE ACTION OF THE LEARNED COMMR. OF INCOME TAX(APPEALS) IN CONFIRMING THE LEVY OF PENALTY IS NOT JUSTIFIED. 4. THE LEARNED COMMR. OF INCOME TAX (APPEALS) HAS E RRED IN CONCLUDING THAT THE APPELLANT IS NOT ENTITLED TO DE DUCTION U/S 80RR OF INCOME-TAX ACT 1961 BUT HAS NOT CONCLUDED AS TO HOW THE APPELLANT HAS FURNISHED INACCURATE PARTICULARS AND TRIED TO CONCEAL THE PARTICULARS OF INCOME. THE LEARNED COMMR. OF IN COME TAX (APPEALS) HAS NOT GIVEN ANY FINDING REGARDING THE I SSUE AS TO HOW THE APPELLANT HAS COMMITTED DEFAULT U/S 271(1)(C). THE APPELLANT PRAYS THAT ORDER PASSED BY THE LEARNED COMMR. OF IN COME TAX (APPEALS) IS NOT JUSTIFIED. 5. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APP ELLANT PRAYS THAT THE ISSUE REGARDING THE ALLOWABILITY OF CLAIM IS A LEGAL ISSUE AND THE DEPARTMENT HAD ALREADY ACCEPTED THE CLAIM ONCE IN T HE ORIGINAL ASSESSMENT PROCEEDINGS. THE FULL FACTS WERE DISCLOS ED AT THE TIME OF FILING THE RETURN. IN CASE OF A LEGAL ISSUE THERE W OULD BE MORE THAN ONE VIEW. BASED ON THIS FACTUAL POSITION THE APPELL ANT PRAYS THAT PENALTY LEVIED U/S 271(1)(C) MAY BE DELETED. 4 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 3. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITIONS IN QUANTUM APPEA L (ITA NO. 3970/MUM/2010 FOR THE A.Y. 2001-02 & ITA NO. 3971/M UM/2010 FOR THE A.Y. 2002-03) VIDE ORDER DATED 16/03/2016. THEREFORE TH E PENALTY APPEAL FOR THE A.YS 2001-02 & 2002-03 DO NOT SURVIVE. THE LD. COU NSEL ALSO PLACED ON RECORD THE ORDER PASSED BY THE CO-ORDINATE BENCH OF THE TR IBUNAL IN QUANTUM APPEAL. 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT CON TROVERT THE FACT THAT THE ADDITIONS ON THE BASIS OF WHICH THE PENALTY ORDERS PERTAINING TO THE ASSESSMENT YEARS 2001-02 & 2002-03 WERE PASSES HAV E BEEN DELETED IN SECOND APPEAL BY THE ITAT. 5. WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE DOCUMENTS ON RECORD INCLUDING THE ORDER PASSED THE CO-ORDINATE BENCH IN QUANTUM APPEAL. IN QUANTUM APPEAL THE ISSUES BEFORE THE COORDINATE BEN CH FOR ADJUDICATION WERE WHETHER THE LD. CIT(A) HAS ERRED IN HOLDING THAT N OTICE ISSUED U/S 148 OF THE ACT WAS VALID AND REASSESSMENT PROCEEDINGS WERE VAL IDLY INITIATED AND SECONDLY WHETHER THE LD. CIT(A) HAS ERRED IN CONFI RMING THE ASSESSMENT ORDER REJECTING THE CLAIM OF THE APPELLANT U/S 80RR OF T HE ACT AMOUNTING TO RS. 97 71 079/-? THE CO-ORDINATE BENCH AFTER HEARING BO TH THE PARTIES REPLIED BOTH THE QUESTION IN AFFIRMATIVE AND ACCORDINGLY DELETED THE ADDITION MADE BY THE AO REJECTING THE CLAIM OF THE ASSESSEE. 6. SINCE THE ADDITION ON THE BASIS OF WHICH THE PENALTY IN QUESTION WAS IMPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A) HAS BEEN DELETED BY THE COORDINATE BENCH THE PENALTY ORDER DOES NOT SURVIV E. WE THEREFORE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND ALL OW THE APPEAL OF THE ASSESSEE. 5 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 ITA NO. 5104/MUM/2014 A.Y. 2002-03 THE FACTS OF THE PRESENT APPEAL ARE SIMILAR TO FAC TS OF THE APPEAL OF THE ASSESSEE IN ITA NO. 5103/MUM/2014 FOR THE A.Y. 2001 -02 ( EXCEPT THE AMOUNT OF DISALLOWANCE AND PENALTY) AND THE ISSUE INVOLVED IN THE PRESENT APPEAL IS ALSO IDENTICAL TO THE ISSUE INVOLVED IN THE SAID AP PEAL. SINCE WE HAVE ALLOWED THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 WE ALSO ALLOW THE APPEAL OF THE ASSESSEE FOR THE ASST. YEAR 2002-03 O N THE SAME REASONING. ITA NO. 5105/MUM/2014 A.Y. 2002-03 IN THIS CASE IT WAS SEEN FROM THE ASSESSMENT RECOR D FOR ASST. YEAR 1999- 2000 THAT DURING THE FINANCIAL YEAR 2001-05 RELEVAN T TO ASSESSMENT YEAR 2002- 03 THE ASSESSEE WAS GRANTED REFUND OF RS. 8 06 946 /- AFTER ADJUSTMENT OF MRBI RS. 3 96 333/- WHICH INCLUDED INTEREST U/S 244 A OF RS. 1 92 109/- ALLOWED TO THE ASSESSEE U/S 244A OF THE ACT WAS N OT OFFERED BY THE ASSESSEE FOR TAXATION DURING THE YEAR OF RECEIPT I.E. ASST. YEAR 2002-03 AND THIS HAS RESULTED IN UNDER ASSESSMENT OF INCOME OF RS. 1 92 109/-. THE MISTAKE BEING APPARENT THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD IN THE MATTER BY ISSUE OF NOTICE U/S 154 OF THE ACT AND AFTER HEA RING THE ASSESSEE DETERMINED THE TOTAL INCOME OF THE ASSESSEE AFRESH. THE ASSESS EE CHALLENGED THE SAID ORDER BEFORE THE LD. CIT(A) AND LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE AO. THE ASSESSEE IS IN APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 2. THE ASSESSEE CHALLENGED THE IMPUGNED ORDER ON T HE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APP ELLANT PRAYS THAT THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER U /S 154 OF THE 6 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 INCOME TAX ACT 1961 AND CONFIRMED BY LEARNED COMMR OF INCOME TAX (APPEALS) IS BAD IN A LAW MAY BE CANCELLED. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APP ELLANT PRAYS THAT THE ORDER PASSED U/S 154 OF THE INCOME TAX ACT 196 1 IS BEYOND THE PRESCRIBED TIME LIMIT SPECIFIED U/S 154 OF THE INCO ME TAX ACT 1961. THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER A ND CONFIRMED BY LEARNED COMMR. OF INCOME TAX (APPEALS) IS AGAINS T THE PROVISIONS OF INCOME TAX ACT 1961 AND MAY BE CANCE LLED. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APP ELLANT PRAYS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN RESPECT OF THE REASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF INCOME TAX ACT 1961. AS THERE WAS NO MISTAKE APPARENT FROM RECORD THE ORDER PASSED U/S 154 MAY BE CANCELLED. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APP ELLANT SUBMITS THAT THE REASSESSMENT ORDER IS ITSELF SUBJECT MATTE R OF CHALLENGE AND THE MATTER IS PENDING BEFORE INCOME TAX APPELLATE T RIBUNAL. IF THE REASSESSMENT PROCEEDINGS ITSELF IS TREATED AS INVAL ID THE CONSEQUENTIAL ORDER PASSED U/S 154 WILL ALSO NOT SU RVIVE. BASED ON THESE FACTS THE APPELLANT PRAYS THAT ORDER PASSED U /S 154 MAY BE CANCELLED. 3. SINCE IN THE QUANTUM APPEAL PERTAINING TO THE A SST. 2002-03 THE CO- ORDINATE BENCH HAS QUASHED THE ASSESSMENT ORDER PAS SED U/S 143(3) R/W SECTION 147 OF THE ACT HOLDING THAT THE REASSESSME NT PROCEEDING IS BAD IN LAW AND FURTHER HOLDING THAT THE ASSESSEE IS ENTITLED F OR CLAIM U/S 80RR OF THE ACT THE RECTIFICATION ORDER U/S 154 OF THE ACT DOES NOT SURVIVE. HENCE THE ORDER 7 ITA NO 5103 TO 5105/MUM/2014 ASSESSM ENT YEAR: 2001-02 & 2002-03 PASSED BY THE LD. CIT(A) WILL ALSO NOT SURVIVE. WE THEREFORE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND ALLOW T HE APPEAL OF THE ASSESSEE. 4. IN THE RESULT ALL THE THREE APPEALS FILED BY T HE ASSESSEE FOR ASST. YEARS 2001-02 & 2002-03 ARE ALLOWED. PRONOUNCED ON 28 TH OCT 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:28/10/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' $ !'% / DR ITAT MUMBAI 6. &' ( / GUARD FILE. / BY ORDER ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI PRAMILA