TMI Blog2018 (9) TMI 1787X X X X Extracts X X X X X X X X Extracts X X X X ..... take apparent from the record. Hence, in our considered opinion, in light of the above said Hon’ble Apex Court decision, a mistake apparent from the record has crept into the order of this Tribunal - Accordingly, we recall the aforesaid order. The Registry is directed to fix the case before the regular bench in the normal course of hearing. - M.A. No.261/Mum/2017 (Arising out of ITA No. 5289/Mum/2011) - - - Dated:- 5-9-2018 - SHRI JOGINDER SINGH, JM AND SHRI SHAMIM YAHYA, AM For the Appellant : Ms. R. Kavitha For the Respondent : Shri B. V. Jhaveri ORDER Per Shamim Yahya, A. M.: By way of this Miscellaneous Application ( MA for short), the Revenue seeks recall of the order of this Tribunal in ITA No. 5289/Mum/2011 for assessment year ( A.Y. for short) 2001-02 vide order dated 28.07.2015. 2. The submissions of the Revenue as contended in MA reads as under: In this connection, it is submitted that, the assessee has preferred appeal before the Hon'ble ITAT on the following grounds in ITA.5289/Mum/2011 for A.Y.2001-02. 1) The Commissioner of Income-tax (Appeals) erred in confirming the penalty ofRs. 13,69,656/-levied by the Dy.CIT 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the FAA did not have the benefit of the order of the Tribunal As the addition made by the AO have been deleted by the Tribunal in the quantum appeal, so in our opinion the penalty imposed by the AO/enhanced by the FAA would not survive. Here it is worthwhile to mention that Hon ble ITAT vide Order No. 2366/Mum/2005 dated 22.08.2008 has enhanced the income of the assessee from Rs.(-) 3,69,63,900/-to NIL thereby confirms the view taken by the AO that the assessee has furnished inaccurate particulars of income by claiming returned loss to the tune of ₹ 3,69,63,900/-. Thus, the penalty to the extent of loss confirmed is in line with the Hon'ble ITAT's order. Hence, Miscellaneous Application is being filed to correct the figures and to clarify the fact that reduction of loss to NIL income would amount to furnishing of inaccurate particulars and would attract Penalty u/s.271(l)(c) of the I T Act, 1961. A copy of approval of Pr.CIT-11, Mumbai to file Miscellaneous Application is enclosed herewith. 3. In terms of the above MA, we have heard both the counsel and perused the records. 4. To recapitulate the issue in this appeal before the Tribunal was against the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the profit rate of the assessee in the preceding year,unless the facts justify departure therefrom.Coming back to-the facts of the instant case,we note from the written submissions filed - before the learned CIT(A) that in the immediately preceding year there was a gross loss of ₹ 354 lakhs. The learned A.R. has stated that the company was consistently suffering losses from year to year basis and was eventually closed.Under the present circumstances, no useful purpose would be served by sending the matter back to the file of the Assessing Officer for a fresh decision, as was initially suggested by the learned A.R. Taking into consideration the totality of the facts and circumstances prevailing in this case, we are of the considered opinion that it would be just and fair if the net income from trading operations is taken at Rs. Nil. Both the sides have agreed to this proposal from the Bench during the course of hearing. We order accordingly. 6. From the above, it is evident that in the order of the ITAT, the loss declared by the assessee at ₹ 3.69 crores was reduced to Nil. 7. In the penalty proceedings in this case, the A.O. had levied penalty based upon his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore directed to levy penalty on an amount of ₹ 4,04,27,000/-. 9. Against the above order, the assessee appealed before the ITAT. 10. The ITAT noted the facts of the case. The Tribunal thereafter held as under: 3.Before us, Authorised Representative (AR)submitted that the AO and the FAA had levied the penalty/confirmed the penalty order before the order of the Tribunal was pronounced, that the Tribunal had determined the income of the assessee at Rs.nil, that there was no justification for enhancing the penalty, that the assessee company was defunct. Departmental Representative(DR) supported the order of the FAA. 4.We have heard the rival submissions and perused the material on record. We find that the AO had completed the assessment determining the income of the assessee at ₹ 34.63 lacs,that the Tribunal had reduced the income for the year under appeal at Rs.NIL, that the company is now defunct and had suffered a loss of ₹ 3.54 Crores in the immediate preceding AY., that the AO or the FAA did not have the benefit of the order of the Tribunal.As addition made by the AO have been deleted by the Tribunal in the quantum appeal, so, in our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the hypothesis that the amount does not represent concealed income as with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee's case is false. The view taken by the Tribunal is a reasonable and possible view. The appeal is without any substance. The same is dismissed in limine with no order as to costs. 15. The ld. Counsel of the assessee has submitted that the ITAT has duly decided the issue giving due consideration to the above said Hon'ble jurisdictional High Court decision. Hence, he submitted that there is no mistake apparent from the record in the penalty order passed by the ITAT. 16. Upon careful consideration, we note that the ld. CIT(A) in its order while confirming and enhancing the amount of penalty had quoted the decision of the Hon ble Apex Court in the case of Virtual Soft Systems Ltd. (supra). In the said decision it was held that after the amendment by Finance Act, 2002, the proposition stand altered that in the absence of any positive income and no tax being levied, penalty for conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. 18. Hence, in our considered opinion, in light of the above said Hon ble Apex Court decision, a mistake apparent from the record has crept into the order of this Tribunal. 19. As regards the reliance by the ld. Counsel of the assessee in the decision of Ramesh Electric And Trading Co. (supra) the same was on the premise that not taking into account the arguments advanced by either of the parties cannot result any mistake apparent from the record. In our considered opinion, the said case law is not at all applicable on the facts of this case, as the mistake apparent from the record in this case has been found to be non consideration of the Hon ble Apex Court decision on this subject. 20. As regard the Hon'ble Bombay High Court decision in the case of Upendra V. Mithani (supra) referred by the ld. Counsel of the assessee that the same was considered by the Tribunal in the penalty order as aforesaid, firstly, we note that there is no mention of that the Hon'ble Bombay High Court decision in the said order. Moreover, the mistake apparent from the record in this case has been found to be non consideration of the Hon ble Apex Court decision on the said subject. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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