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Shri Harresh Mehta Versus DCIT-CC-47, Mumbai

2015 (12) TMI 286 - ITAT MUMBAI

Penalty u/s 271(1)(c) - deceleration of additional income in reply to notice u/s 153A - Held that:- So far as, the first addition is concerned, the money belonged to partnership firm M/s Silver Arch Builders and Promoters. Before the settlement commission, applicants made prayer for capitalization of their income following application method, which was allowed by the ld. Settlement Commission. As decided in ACIT vs Haresh N Mehta [2013 (11) TMI 1582 - ITAT MUMBAI] assessee has explained the sour .....

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ed upon interpretation of facts. Therefore, at least, it is not a fit case for levying penalty, because, the assessee disclosed the material facts/details and even the ld. Commissioner of Income Tax (Appeals) affirmed the addition only to the extent of ₹ 9,92,800/- out of the addition of 28,60,000/-. That too is based upon appreciation of facts. It may or may not be a good case for sustaining part addition but not sustaining the penalty, because, for penalty either there should be concealm .....

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a For The Revenue : Shri Kusum Bansal-DR ORDER Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 30/09/2013 of the ld. First Appellate Authority, Mumbai. The only ground pressed by the assessee is ground no.3, which pertains to confirming the penalty of ₹ 11,86,896/- imposed u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter the Act). 2. During hearing of this appeal, the crux of argument advanced by Shri Vijay Mehta, ld. counsel for the assesse .....

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s contended that the assessee did not file appeal under the effect of these two orders. Our attention was invited to page 62 of the paper book by contending that the direction of the settlement commission is binding on the Assessing Officer. With respect to second addition, it was contended that addition was of ₹ 28,60,000/- by the Assessing Officer by inviting our attention to para 4 of the order of the ld. Commissioner of Income Tax (Appeals), para 8 of the penalty order, by explaining t .....

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drawn by the ld. Commissioner of Income Tax (Appeals) by inviting our attention to para 7.1 of the impugned order. 2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee declared total income of ₹ 42,48,960/- in his return. A search and seizure action u/s 132 of the Act was carried out in the case of M/s Rohan Group, including Directors of different associated and sister companies and also on the assessee. Noti .....

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appeal before this Tribunal. 2.3. If the observation made in the assessment order/penalty order, leading to imposition of penalty, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we note that major additions, to the total income, were on account of (a) unexplained cash credit, detected out of the incriminating documents seized during the course of search, to the tune of ₹ 28,60,000/- .....

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onfirmed, (iii) The balance addition were deleted by the ld. Commissioner of Income Tax (Appeals) 2.4. The Assessing Officer initiated penalty proceedings. Now, we shall deal with the additions on the basis of which penalty was imposed. So far as, the first addition is concerned, the money belonged to partnership firm M/s Silver Arch Builders and Promoters (Item at serial no.5 at page 1 of the paper book containing order of the settlement commission). Before the settlement commission, applicants .....

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before the Settlement Commission (Pages 86 to 91 relevant page 91). Thus, it was held that double addition cannot be made of the amount which is already subjected to tax in the hands of the firm, thus, the appeal of the Revenue was dismissed. Therefore, from this angle also, no penalty is imposable. Identically vide order dated 07/02/2014, in the case of ACIT vs Haresh N Mehta (the assessee) ITA No.6025/Mum/2012 (pages 92 to 95 of the paper book), the appeal of the Revenue was dismissed. Thus, u .....

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