Versuskarjatkar Leasing And Finance Pvt. Ltd v. Gangapurwala &A. M. Dhavale, Jj.date : 1 St February, 2018

1 ta 1.18 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD TAX APPEAL NO. 1 OF 2018 The Commissioner of Income Tax - I.. Appellant VersusKarjatkar Leasing and Finance Pvt. Ltd... Respondent WITHTAX APPEAL NO. 2 OF 2018 The Commissioner of Income Tax - I.. AppellantVersusKarjatkar Leasing and Finance Pvt. Ltd... Respondent WITHTAX APPEAL NO. 3 OF 2018 The Commissioner of Income Tax - I.. AppellantVersusKarjatkar Leasing and Finance Pvt. Ltd... Respondent VersusKarjatkar Leasing and Finance Pvt. Ltd. WITHTAX APPEAL NO. 4 OF 2018 The Commissioner of Income Tax - I.. AppellantVersusKarjatkar Leasing and Finance Pvt. Ltd... Respondent WITHTAX APPEAL NO. 5 OF 2018 The Commissioner of Income Tax - I VersusKarjatkar Leasing and Finance Pvt. Ltd. .. Appellant.. Respondent 2 ta 1.18 Shri Alok M. Sharma, Advocate for the Appellant.Mrs. C. S. Deshmukh, Advocate for the Respondent / Sole. CORAM : S. V. GANGAPURWALA &A. M. DHAVALE, JJ.DATE : 1 st February, 2018 PER COURT: 1.All these appeals assail the order of the Tribunal allowingthe appeals of the assessee. All these matters pertains toassessment years 1999-2000, 2000-2001, 2001-2002, 2002-2003and 2003-2004. In all these appeals the tax liability is less thanRs. 20 Lacs. The Department has taken a decision pursuant toCentral Board Direct Taxes Circular dated 10[th] December, 2015,not to prosecute the appeals wherein tax liability is less thanRs. 20 Lacs subject to certain exception. Even the Apex Court in a case of Director of Income Tax, New Delhi Vs. S. R. M. B.Diary Farming (P), dated 23rd November, 2017, has observedthat the said Circular applies to pending matters also and thesaid appeals are required to be withdrawn, except where thematter has a cascading effect and it involves an issue coveringlarge number of matters. 3 ta 1.18 2.On that count also, the present appeals deserves to bedisposed of. 3.However, Mr. Sharma, learned advocate for the appellantsubmits that the respondent has deliberately claimed the loss ofsale though the same was not an actual state of affairs. Thereason given by the assessee that the assessee was advised bythe Chartered Accountant in claiming the said relief is un-acceptable. The Chartered Accountant is an expert, who ispresumed to be aware of the provisions of law. In such a case,the respondent cannot take the shelter of the advise of theChartered Accountant. The learned advocate relies on theJudgment of the Apex Court in a case of Union of India (UOI)and others Vs. Dharamendra Textile Processors andothersreported in (2008) 13 SCC 369 and another Judgment ofthe learned Single Judge of the Madhya Pradesh High Court in acase of Commissioner of Income Tax Vs. Mediwala andCompany reported in (1988) 170 ITR 48. 4 ta 1.18 supports the order and further submits that the present casewould be covered by Central Board Direct Taxes Circular dated10[th] December, 2015. 5.We have considered the submissions. 6.The Tribunal in its order relied on the Judgment of theApex Court in a case of Dilip N. Shroff Vs. JCIT and anotherreported in (2007) 291 ITR 519, and observed that there has tobe a conscious concealment on the part of the assessee and that amistake in not returning any income by itself would notconstitute reason enough for imposition of penalty. 4 ta 1.18 supports the order and further submits that the present casewould be covered by Central Board Direct Taxes Circular dated10[th] December, 2015. 5.We have considered the submissions. 6.The Tribunal in its order relied on the Judgment of theApex Court in a case of Dilip N. Shroff Vs. JCIT and anotherreported in (2007) 291 ITR 519, and observed that there has tobe a conscious concealment on the part of the assessee and that amistake in not returning any income by itself would notconstitute reason enough for imposition of penalty. 7.The Tribunal has accepted the contention of the assesseeon the basis of the affidavit filed by the Chartered Accountant /advisor that he gave wrong advise and the situation wereexplained about the bonafide error being committed with regardto the applicability of the provision of law. The benefit wasclaimed on the basis of the deleted provision wherein theassessee had debited the amount to the profit and loss account onaccount of loss of sale of vehicles. The assessee was not entitled 5 ta 1.18 for it as it was not engaged in driving of vehicles. It would alsobe clear that the survey was made only on 10[th] February, 2004and on the basis of the same the matters were taken up forassessment years 1999-2000, 2000-2001, 2001-2002, 2002-2003and 2003-2004. The Tribunal on merits has taken a plausibleview. 8.In view of that, no substantial question of law arises. TheTax Appeals are dismissed. No costs. [A. M. DHAVALE, J.] [S. V. GANGAPURWALA, J.] marathe/Feb.18