DCIT CIR 8(2), MUMBAI V. PEACOCK MEDIA P. LTD, MUMBAI

ITA 1199/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48670 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-04-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Keywords: Application of stay
• Section: 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI R.S.PADVEKAR (JM) AND SHRI RAJENDRA SI NGH(AM) ITA NO.1199/M/2010 ASSESSMENT YEAR 2008-09 THE DCIT 8(2), ROOM NO.216-A M/S.PEACOCK MEDIA PV T. LTD. AAYAKAR BHAVAN, M.K.ROAD, 24-B, APOLLO INDUSTRIA L ESTATE MUMBAI 400 020. OFF. MAHAKALI CAVES ROAD, ANDHERI (E), MUMBAI 400 093. PAN : AACCA 4934 A APPELLANT RESPONDENT REVENUE BY : SHRI HARI GOVIND SINGH ASSESSEE BY : NONE O R D E R PER RAJENDRA SINGH (AM) THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 15.11.2009 OF CIT(A) FOR THE ASSESSMENT YEAR 2008-0 9. THE ONLY DISPUTE RAISED IS REGARDING LEVY OF PENALTY UNDER SECTION 221(1) F OR DEFAULT IN PAYMENT OF SELF ASSESSMENT TAX. AO NOTED THAT ON THE BASIS OF RETUR N FILED FOR A.Y.2008-09 A SUM OF RS.4,73,53,480/- WAS DUE TO BE PAID BY THE A SSESSEE BEFORE FILING THE RETURN OF INCOME ON 10.10.2008. HOWEVER NO SELF ASS ESSMENT TAX WAS PAID. AO ALSO OBSERVED THAT IN RESPONSE TO SHOW-CAUSE NOTICE ISSUED, NO EXPLANATION WAS FILED BY THE ASSESSEE. THE ASSESSEE HAD ALSO NOT AP PLIED FOR STAY OF DEMAND OR MADE ANY REQUEST FOR GRANT OF INSTALLMENTS. AO THER EFORE CONCLUDED THAT THERE WAS WILLFUL DEFAULT ON THE PART OF THE ASSESSEE IN NOT MAKING THE PAYMENT AND ACCORDINGLY THE PENALTY OF RS.47 LACS WAS LEVIED UN DER SECTION 221(1). 2 2. IN APPEAL, THE ASSESSEE SUBMITTED BEFORE CIT(A ) THAT DEFAULT IN PAYMENT OF SELF ASSESSMENT TAX WAS BECAUSE OF FINAN CIAL CRISIS. IT WAS POINTED OUT THAT THE BALANCE IN THE BANK OF THE ASSESSEE IN THE MONTH OF OCTOBER 2008 WAS ONLY AROUND RS.20 LACS NEEDED TO MEET THE OPERA TING EXPENSES AND WHICH WAS LESS THAN 5% OF SELF ASSESSMENT TAX. IT WAS ALS O SUBMITTED THAT THE ASSESSEE HAD PAID 80% OF DEMAND BY MARCH 2009 AND B ALANCE BY 9.7.2009. IT WAS FURTHER SUBMITTED THAT INSPECTOR HAS VISITED TH E PREMISES OF THE ASSESSEE AND HAD COLLECTED THE POST DATED CHEQUES WHICH WAS THE REASON FOR NOT REPLYING TO THE SHOW CAUSE NOTICE. CIT(A) AGREED WITH THE SU BMISSION OF THE ASSESSEE AND OBSERVED THAT THERE WERE GOOD AND SUFFICIENT RE ASONS FOR DELAY IN PAYMENT OF SELF ASSESSMENT TAX AND ACCORDINGLY DELETED THE PENALTY LEVIED AGGRIEVED BY WHICH THE REVENUE IS IN APPEAL. 3. AT THE TIME OF HEARING OF APPEAL NO ONE APPEARED ON BEHALF OF THE ASSESSEE AND AN ADJOURNMENT LETTER WAS RECEIVED ON THE GROUND THAT THE COUNSEL WAS OUT OF TOWN WITHOUT ANY SUPPORTING MATE RIAL. THE SAME WAS REJECTED AND THE BENCH DECIDED TO PROCEED WITH THE MATTER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LEARNED DR. 4. WE HAVE HEARD THE LEARNED DR, PERUSED THE RECORD S AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REGARDING LEVY OF PENALTY UNDER SECTION 221(1) FOR DEFAULT IN PAYMENT OF SELF ASSESSMENT TAX. THER E IS NO DISPUTE THAT ON THE BASIS OF RETURN OF INCOME FILED BY THE ASSESSEE, SE LF ASSESSMENT TAX OF RS.4,73,53,480/- WAS DUE TO BE PAID BY THE ASSESSEE WHICH WAS NOT DONE. IT IS ALSO NOT IN DISPUTE THAT BEFORE THE AO THE ASSESSEE HAD NOT FILED ANY EXPLANATION. HOWEVER, BEFORE THE CIT(A) THE ASSESSE E SUBMITTED EXPLANATION THAT THERE WAS FINANCIAL CRISIS AND THE ASSESSEE DI D NOT HAVE SUFFICIENT BANK 3 BALANCE. IT WAS ALSO SUBMITTED THAT THE INSPECTOR H AD VISITED THE PREMISES OF THE ASSESSEE AT THE RELEVANT TIME AND COLLECTED POS T DATED CHEQUES AND THAT THE ASSESSEE HAD PAID 80% DEMAND BY MARCH, 2009 AND BALANCE BY 9.7.2009. BASED ON SUCH SUBMISSION CIT(A) HAS ALLOWED RELIEF. IN OUR VIEW RELIEF ALLOWED BY THE CIT(A) BASED ON FRESH MATERIAL WITHOUT GIVIN G ANY OPPORTUNITY TO THE AO IS NOT CORRECT. WE THEREFORE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF AO FOR PASSING A FRESH ORDER AFTER CONSIDERING THE MATERIAL FILED BEFORE CIT(A) AND AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED F OR STATISTICAL PURPOSE. 5. ORDER WAS PRONOUNCED IN THE OPEN COURT 27.04.201 1. SD/- SD/- ( R.S. PADVEKAR ) (RAJEND RA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 27.04.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR C BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ALK