GREGORY & NICHOLAS, GOA v. ACIT CEN CIR 47, MUMBAI

ITSSA 91/MUM/2009 | misc
Pronouncement Date: 29-09-2011 | Result: Allowed

Appeal Details

RSA Number 9119916 RSA 2009
Assessee PAN AADFG2720Q
Bench Mumbai
Appeal Number ITSSA 91/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 7 day(s)
Appellant GREGORY & NICHOLAS, GOA
Respondent ACIT CEN CIR 47, MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 29-09-2011
Date Of Final Hearing 28-09-2011
Next Hearing Date 28-09-2011
Assessment Year misc
Appeal Filed On 22-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G MUMBAI BEFORE SHRI R V EASWAR PRESIDENT AND SHRI J SUDHAKAR REDDY ACCOUNTANT MEMBER I T (SS) A NO: 91/MUM/2009 (BLOCK PERIOD : 01.04.1996 TO 18.02.2003) M/S GREGORY & NICHOLAS GOA APPELLANT (PAN: AADFG2720Q) VS ASSISTANT COMMISSIONER OF INCOME TAX RESPONDENT CENTRAL CIRCLE 47 MUMBAI ASSESSEE BY: MR DHARMESH SHAH REVENUE BY: MR PAVAN VED DATE OF HEARING: 28 TH SEPTEMBER 2011 DATE OF PRONOUNCEMENT: 29 TH SEPTEMBER 2011 O R D E R R V EASWAR PRESIDENT: THIS APPEAL BY THE ASSESSEE RELATES TO THE BLOCK P ERIOD 01.04.1996 TO 18.02.2003 AND IS DIRECTED AGAINST TH E PENALTY OF ` 51 00 000/- IMPOSED UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT 1961. 2. THE BRIEF FACTS IN THIS CONNECTION ARE THAT A BL OCK ASSESSMENT ORDER WAS PASSED ON 26.04.2006 IN THE CASE OF THE A SSESSEE UNDER SECTION 158BD OF THE ACT DETERMINING THE TOTAL UND ISCLOSED INCOME AT 2 IT(SS)A NO: 91/MUM/2009 ` 80 73 120/-. THIS ORDER WAS APPEALED AGAINST BY TH E ASSESSEE BEFORE THE CIT(A). IT WOULD APPEAR THAT THERE WAS A DELAY IN FILING THE APPEAL. THE ASSESSEE SUBMITTED AN EXPLANATION BEFORE THE CI T(A) FOR THE DELAY. BRIEFLY THE EXPLANATION WAS THAT THE BUSIN ESS WAS DISCONTINUED FROM 2003 DUE TO CONTINUED LOSSES THAT THE PARTNER S WERE SITUATED AT DIFFERENT PLACES AND NOT AT ONE PLACE THEY DID NOT HAVE ANY CONTACT OFFICE IN MUMBAI AND THAT IN THESE CIRCUMSTANCES NO PROPER STEPS COULD BE TAKEN IN TIME TO FILE THE APPEAL. THE CIT (A) IN HIS ORDER DATED 01.03.2007 REFUSED TO CONDONE THE DELAY AND ACCORD INGLY DISMISSED THE APPEAL IN LIMINE. AGAINST THE ORDER OF THE CIT (A) THE ASSESSEE FILED A FURTHER APPEAL TO THE TRIBUNAL IN ITA NO: 5102/MU M/2006 AND IT(SS)A NO: 24/MUM/2009. THE TRIBUNAL BY ORDER DAT ED 07.01.2011 HELD THAT THE CIT(A) OUGHT TO HAVE CONDONED THE DEL AY. THE TRIBUNAL ALSO EXAMINED THE MERITS OF THE ADDITION MADE IN TH E BLOCK ASSESSMENT AND FINALLY HELD THAT SINCE THE ADDITION WAS MADE A LSO IN THE REGULAR ASSESSMENT IT CANNOT BE BROUGHT TO TAX ONCE AGAIN I N THE BLOCK ASSESSMENT. IT FURTHER HELD THAT THE ADDITION ALRE ADY MADE IN THE REGULAR ASSESSMENT CANNOT BE TERMED AS A PROTECTIVE ADDITION. IN THIS VIEW OF THE MATTER THE ADDITION MADE IN THE BLOCK A SSESSMENT WAS DELETED. SO FAR AS THE REGULAR ASSESSMENT IS CONCE RNED THE TRIBUNAL CONFIRMED THE ADDITION OF ` 80 73 120/-. A COPY OF THE SAID ORDER OF THE TRIBUNAL HAS BEEN FILED BEFORE US. 3 IT(SS)A NO: 91/MUM/2009 3. CONSEQUENT TO THE PASSING OF THE BLOCK ASSESSMEN T ORDER THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UND ER SECTION 158BFA(2) OF THE ACT. THE ASSESSEE MADE ELABORATE SUBMISSIONS IN RESPONSE TO THE SHOW CAUSE NOTICE BUT THEY WERE REJ ECTED BY THE ASSESSING OFFICER WHO LEVIED THE IMPUGNED PENALTY BY ORDER DATED 16.10.2007. AGAINST THIS ORDER OF PENALTY AN APPE AL TO THE CIT(A) OUGHT TO HAVE BEEN FILED ON OR BEFORE 30.11.2007 BU T IT WAS FILED ONLY ON 23.02.2009 AFTER A DELAY OF ONE YEAR THREE MONT HS AND TWENTY THREE DAYS. THE CIT(A) REFUSED TO CONDONE THE DELA Y AND DISMISSED THE APPEAL IN LIMINE BY ORDER DATED 12.11.2009. 4. IT IS AGAINST THE AFORESAID ORDER THAT THE ASSES SEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. SINCE THE TRIBUNAL IN ITS ORDER CITED SUPRA HAS CONDONED THE DELAY BEFORE THE CIT(A) OCCASIONED BY SIMILAR CIRCUMSTANCES RESPECTFULLY FOLLOWING THE SAME LINE OF REASONING WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE C IT(A) AGAINST THE ORDER IMPOSING THE PENALTY. SINCE THE TRIBUNAL HAS ALSO DELETED THE ADDITION OF ` 80 73 120/- MADE IN THE BLOCK ASSESSMENT VIDE ITS O RDER DATED 07.01.2011 (SUPRA) THE PENALTY HAS NO LEGS T O STAND. WE HOLD ACCORDINGLY. THE LEARNED CIT DR HOWEVER SUBMITTE D THAT THE REVENUE IS CONTEMPLATING TO TAKE STEPS TO FILE A MI SCELLANEOUS APPLICATION BEFORE THE TRIBUNAL FOR RECTIFICATION O F ITS ORDER. HE THEREFORE PRAYED THAT WE MAY DEFER OUR DECISION TIL L THE MISCELLANEOUS APPLICATION TO BE FILED BY THE DEPARTMENT IS DISPOS ED OF. WE ARE NOT 4 IT(SS)A NO: 91/MUM/2009 INCLINED TO ACCEPT THE PRAYER. AS OF NOW NO MISCEL LANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE. AS THINGS STAND TOD AY THE ADDITION MADE IN THE BLOCK ASSESSMENT HAS BEEN DELETED BY TH E TRIBUNAL AND THE ORDER OF THE TRIBUNAL HOLDS THE FIELD. IN VIEW OF THE SAID ORDER THE PENALTY LEVIED UNDER SECTION 158BFA(2) CANNOT SURVI VE. WE THEREFORE CANCEL THE PENALTY. 5. IN THE RESULT THE APPEAL IS ALLOWED WITH NO ORD ER AS TO COSTS. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH SEPTEMBER 2011. SD/- SD/- (J SUDHAKAR REDDY) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI DATED 29 TH SEPTEMBER 2011 SALDANHA COPY TO: 1. M/S GREGORY & NICHOLAS C/O CLUB CUBANA ARPORA BARBEZ GOA. 2. ACIT CENTRAL CIRCLE 47 MUMBAI 3. CIT-CENTRAL IV MUMBAI 4. CIT(A)-38 MUMBAI 5. DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT MUMBAI