SHAH THAKUR & SONS., MUMBAI v. ITO 12(2)(1), MUMBAI

ITSSA 3/MUM/2010 | misc
Pronouncement Date: 11-03-2011 | Result: Allowed

Appeal Details

RSA Number 319916 RSA 2010
Assessee PAN AABFS6090F
Bench Mumbai
Appeal Number ITSSA 3/MUM/2010
Duration Of Justice 1 year(s) 2 month(s) 7 day(s)
Appellant SHAH THAKUR & SONS., MUMBAI
Respondent ITO 12(2)(1), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 11-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 11-03-2011
Date Of Final Hearing 06-12-2010
Next Hearing Date 06-12-2010
Assessment Year misc
Appeal Filed On 04-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI R.S.SYAL ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER IT(SS)A NO. 3/MUM/2010 (BLOCK ASSESSMENT PERIOD : 1987-88 TO 1997-98) SHAH THAKUR AND SONS 401 KSHAMALAYA 37 NEW MARINE LINES MUMBAI-400020 PAN: AABFS6090F . APPELLANT VS INCOME TAX OFFICER 12(2)(1) AAYAKAR BHAVAN M K ROAD MUMBAI-400020 RESPONDENT APPELLANT BY : SHRI SAMEER DALAL RESPONDENT BY : SHRI SURENDRA KUMAR. O R D E R PER VIJAY PAL RAO THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)- MUMBAI DATED 16.10.2009 ARISI NG FROM THE ORDER PASSED U/SS 154/155 OF THE INCOME TAX AC T FOR THE BLOCK ASSESSMENT PERIOD: 1987-88 TO 1997-98. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL HOWEVER THE ONLY ISSUE ARISES FOR OUR CONSIDERATIO N AND ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTA NCES OF THE IT(SS)A NO. 3/MUM/2010 (BLOCK ASSESSMENT PERIOD : 1987-88 TO 1997-98) 2 CASE THE CIT(A) IS JUSTIFIED IN CONFIRMING THE L EVY OF SURCHARGE CHARGED U/S 113 OF THE ACT BY THE AO W HILE PASSING THE ORDER U/S 154 OF THE ACT IN PURSUANCE TO THE ASSESSMENT ORDER PASSED U/S 158BC OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED THE RELEVANT RECORD. AT THE OUTSET THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE IDENTICAL ISSUE HAS BEEN CONSIDE RED AND ADJUDICATED UPON BY THIS TRIBUNAL IN THE CASE OF SISTER CONCERN OF THE ASSESSEE SARAL ENTERPRISES IN IT(S S) NO.58/MUM/2009 FOR THE BLOCK PERIOD 1987-88 TO 1997 -98 ORDER DATED 26.11.2010. 4. ON THE OTHER HAND THE LEARNED DR HAS RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5. AFTER CONSIDERING THE RIVAL CONTENTIONS AND ON PERUSAL OF THE ORDER RELIED UPON BY THE LEARNED AR IN THE CASE OF SARAL ENTERPRISES V/S ITO (SUPRA) WE FIND THAT THE IDEN TICAL ISSUE HAS BEEN CONSIDERED AND ADJUDICATED UPON BY THE CO- ORDINATE BENCH OF THIS TRIBUNAL VIDE PARAGRAPH 5 OF THE ORD ER. THE RELEVANT PARAGRAPH IS REPRODUCED BELOW : 5. AFTER HEARING THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES WE FIND FROM THE COPY OF THE TAX RATES FOR TEN ASSESSMENT YEARS A COPY OF WHICH IS IT(SS)A NO. 3/MUM/2010 (BLOCK ASSESSMENT PERIOD : 1987-88 TO 1997-98) 3 PLACED IN THE PAPER BOOK AND EXTRACTED FROM TAXMANS MATER GUIDE TO IT ACT 2004 EDITION THAT THERE IS NO SURCHARGE FOR THE AYS 1995-96 TO 1997- 98. SINCE IN THE INSTANT CASE THE DATE OF SEARCH FO R FIRMS (PFAS) WAS 15.7.1996 AND SINCE FOR THE ASSESSMENT YEAR 1997-98 THERE IS NO SURCHARGE FOR FIRMS (PFAS); THEREFORE IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE TO SUBSTANTIATE THAT THERE WAS SURCHARGE DURING THE YEAR WE FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THAT NO SURCHARGES CAN BE LEVIED ON THE TAX SO DETERMINED IN THE BLOCK ASSESSMENT. WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE SURCHARGE LEVIED ON THE TAX SO DETERMINE D. WE HOLD AND DIRECT ACCORDINGLY. THE GROUND RAISED B Y THE ASSESSEE IS ACCORDINGLY ALLOWED. 6. WE FIND THAT BOTH THE CASES ARE ARISING OUT OF T HE SAME SEARCH CONDUCTED ON 15.7.1996 THEREFORE RESPECTF ULLY FOLLOWING THE ORDER OF THIS TRIBUNAL IN THE CASE OF SARAL ENTERPRISES (SUPRA) WE DECIDE THIS IN FAVOUR OF T HE ASSESSEE. 7. THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2011 SD SD (R.S.SYAL) (VIJ AY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ON THIS 11 TH DAY OF MARCH 2011 SRL:8311 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI