KAUSHIK M. AJMERA, MUMBAI v. ITO WD 24(2)(1), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI. BEFORE SHRI R.V.EASWAR SR.VP AND SHRI J.SUDHAKAR R EDDY AM I.T.A. NO.613/MUM/2009 (ASSESSMENT YEAR: 1998-99) SHRI KAUSHIK M.AJMERA 501 SHUBHAM APTS OPP.MAMLATDAR WADI ROAD NO.6 MALAD(W) MUMBAI-400 064. PAN:AABPA0612K VS. THE INCOME TAX OFFICER WARD-24(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : MR. MANVENDRA GOYAL DR O R D E R PER R.V.EASWAR SENIOR VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE LEVY OF PENALTY OF RS.84 624/- UNDER SECTION 271(1)(C) OF THE ACT. THE PENALTY HAS BEEN LEVIED ON THE GROUND THAT THE PURCHASE AND SALE OF DIAMON DS APPEARING IN THE ACCOUNTS OF THE ASSESSEE WERE CONF ESSED TO BE NON-GENUINE AND MERELY TO FACILITATE CERTAIN PERSON S WHO FILED DECLARATIONS UNDER VDIS 97. IT WAS THE CASE OF THE DEPARTMENT THAT THE ASSESSEE HAS NOT SATISFACTORILY EXPLAINED THE NATURE AND SOURCE OF THE SUM OF RS.2 69 850/- ADDED UNDER SECT ION 68 AS UNEXPLAINED CASH RECEIVED. 2. IT IS SEEN FROM THE APPEAL RECORD THAT THE TRIB UNAL HAS BY ORDER PRONOUNCED ON 8 TH OCTOBER 2008 IN ITA NO.1984/MUM/2006 SET ASIDE THE ASSESSMENT AND RESTO RED THE ISSUE GIVING RISE TO THE ADDITION AND CONSEQUENT L EVY OF PENALTY TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AFRESH IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE T RIBUNAL IN THE CASE OF MANOJ AGRAWAL & OTHERS 113 ITD 377(SB). IN VIEW OF THIS ORDER OF THE TRIBUNAL THE PENALTY PROCEEDINGS HAVE NO LEGS ITA NO.613/M/09 2 TO STAND. ACCORDINGLY THE PENALTY LEVIED IS CANCELL ED AND THE APPEAL OF THE ASSESSEE IS ALLOWED WITH NO ORDER AS TO COSTS. ORDER PRONOUNCED ON THIS 15 TH DAY OF APRIL 2010. SD/- (J.SUDHAKAR REDDY) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER SENIOR VICE PRESIDENT MUMBAI DATED 15 TH APRIL 2010. SOMU COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-24 MUMBAI. 4. THE CIT(A)-XXIV MUMBAI 5. THE DR A BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR I.T.A.T MUMBAI