STONE SHIPPERS, MUMBAI V. ASST CIT RG 12(3), MUMBAI

ITA 1225/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1537 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 24-02-2014
• Court: TRIBUNAL
• Assessee Lawyers: HARESH G BUCH
• Keywords: Tangible material
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER I.T.A. NO.1225/M/2014 (ASSESSMENT YEAR: 2004 - 2005) M/S. STONE SHIPPERS (SINCE CONVERTED INTO STONE SHIPPERS LTD) 117, JOLLY MAKER CHAMBERS III, NARIMAN POINT, MUMBAI 400 021. / VS. ACIT - RANGE 12(3), HYDERABAD. ./ PAN :AAKFS7395C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI HARESH G. BUCH / RESPONDENT BY : SHRI SAURABHKUMAR RAI, DR / DATE OF HEARING : 13.12.2016 / DATE OF PRONOUNCEMENT : 16 .12.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 24.2.2014 IS AGAINST THE ORDER OF THE CIT (A) - 23, MUMBAI DATED 2.12.2013 FOR THE ASSESSMENT YEAR 2004 - 2005. 2. IN THIS APPEAL, ASSESSEE RAISED THE SOLITARY ISSUE IN CONNECTION WITH THE PENALTY ORDER OF THE AO PASSED U/S 271(1)(C) OF THE ACT. AO LEVIED THE PENALTY OF RS. 25,23,331/ - IN CONNECTION WITH SHIPMENT EXPENSES AND AD - HOC EXPENSES DISALLOWED IN THE RE - ASSESSMENT MADE U/S 143(3) READ WITH SECTION 147 OF THE ACT, DATED 18.12.2009. 3. BRINGING OU R ATTENTION TO THE ORDER OF THE TRIBUNAL IN QUANTUM APPEALS VIDE ITA NOS. 3454 & 3455/M/2011 AND OTHERS (AYS 2004 - 05 TO 2008 - 2009), DATED 26.4.2016, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID ASSESSMENT ORDER FOR THE AY 2004 - 05 IS HELD BAD IN LAW. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARAS 7 TO 7.3 OF THE SAID TRIBUNALS ORDER (SUPRA) AND READ OUT THE CONTENTS FROM PARAS 7.2 AND 7.3 OF THE SAID ORDER. 2 4. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE SAID PARAS F ROM THE CITED TRIBUNALS ORDER (SUPRA) DATED 26.4.2016, WE FIND, THE FOLLOWING LINES ARE RELEVANT: - 7.2. .........IN OUR VIEW, THE VERY BASIS FOR REOPENING IS WRONG AND WITHOUT ANY TANGIBLE MATERIALS AND THEREFORE HAS TO BE ANNULLED AND QUASHED. ACCORDIN GLY, WE QUASH THE REOPENING THE PROCEEDINGS U/S 147 R.W.S 148 OF THE ACT AND ALSO THE CONSEQUENT ORDER OF ASSESSMENT. THE AO IS DIRECTED ACCORDINGLY. 7.3. IN VIEW OF OUR DECISIONS ON GROUND NO.1 QUASHING THE REOPENING PROCEEDINGS AND THE OTHER GROUNDS RAI SED BY THE ASSESSEE BECOME ACADEMIC AND DO NOT REQUIRE ANY ADJUDICATION. THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. FROM THE ABOVE IT IS EVIDENT THAT THE RE - ASSESSMENT, WHICH IS A BASIS FOR LEVY OF PENALTY HAS BEEN QUASHED AND ANNULLED. CONSEQUENTLY THE PENALTY ORDER HAS NO LEGS TO STAND. THEREFORE, THE ADJUDICATION OF THE GROUNDS RAISED BY THE ASSESSEE BECOMES ACADEMIC EXERCISE. FOR THIS REASON, WE ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNC ED IN THE OPEN COURT ON 1 6 T H DECEMBER, 2016. S D / - S D / - ( RAM LAL NEGI ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 16.12 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI