BHARAT DIAMOND BOURSE, MUMBAI V. ITO (E) WD 1(1), MUMBAI

ITA 1356/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6686 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN CIRCUMSTANCES OF CA SE
• Assessee Lawyers: R K SINHA AR SHRI SUMAN KUMAR
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI RAJENDRA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 1356 / MUM/ 20 1 6 ( / ASSESSMENT YEAR: 20 0 9 - 10 ) BHARAT DIAMOND BOURSE G BLOCK, BANDRA KURLA COMPLEX, TOWER H, G ROUND FLOOR, BANDRA (E), MUMBAI - 400051. / VS. THE INCOME TAX OFFICER (EXEMPTION) WARD - 1(1), MUMBAI. PIRAMAL CHAMBERS, 5 TH FLOOR, LALBAUG, PAREL, MUMBAI - 400012. ./ ./ PAN/GIR NO. : AAACB 2358 R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 02 .0 4 .201 8 / DATE OF PRONOUNCEMENT : 29 . 0 6 . 2018 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 10 . 1 2 .201 5 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2009 - 10 . 2 . THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS: - 1. 1. PENALTY UNDFR SECT1ON 27L(L)(C) OF THE ACT RS,1,61,28,828/ - : 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) [CIT(A)] ERRED IN ASSESSEE BY : SHRI R.K. SINHA (AR) REVENUE BY: SHRI SUMAN KUMAR ( DR ) ITA. NO.1356 /M/201 6 A.Y. 2009 - 10 2 UPHOLDING THE PENAL TY OF KS. 1,61,28,828/ - LEVIED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 27L(L)(C) OF THE ACT, 1.2 THE LEARNED ASSESSING OFFICER AND THE LEARNED CIT(A) FAILED TO APPRECIATE THE SUBMISSIONS MADE AND EXPLANATION OFFERED BY THE APPELLANT IN RESPECT OF THE NON - APPLICABILITY OF THE PROVISO TO SECTION 2(15) OF THE ACT IN THE CASE OF THE APPELLANT, 13 THE LEARNED CIT (A) ERRED ON THE FACTS AND IN LAW IN CONFIRMING THE LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) OF THE ACT WHICH WAS . INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME WHEREAS THE PENALTY WAS LEVIED FOR CONCEALMENT OF INCOME. IT IS SUBMITTED THAT THE APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED ANY INACCURATE PARTICULARS OF INCOME AND HENCE THE PROVI SIONS OF SECTION 271(L)(C) OF THE ACT ARE NOT ATTRACTED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 1.4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE PENALTY LEVIED UNDER S ECTION 271 (1} (C) OF THE ACT WHICH WAS BARRED BY LIMITATION. 1 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) OF THE ACT FOR TH E ISSUES WHICH ARE DEBATABLE. THE APPELLANT PRAYS YOUR HONOUR TO KINDLY CANCEL/DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT AS THE SAME IS UNWARRANTED, UNREASONABLE AND UNJUSTIFIED. 3 . THE BRIEF FACTS O F THE CASE ARE THAT THE ASSESSEE FILED ITS RETU RN OF INCOME ON 29 .0 9 .200 9 DECLARING TOTAL INCO ME TO THE TUNE OF RS.NIL / - AFTER CLAIMING EXEMPTION U/S 11 OF THE I.T. ACT, 1961 FOR THE A.Y. 2009 - 10. THE ASSESSMENT ORDER U/S 143(3)(II) OF THE ACT WAS PASSED ON 30.12.2011 ASSESSING THE INCOME OF THE ASSESS EE TO THE TUNE OF RS.4,77,68,350/ - . THE CLAIM OF THE ASSESSEE WAS DENIED U/S 11 OF THE ACT AS THE OBJECT OF THE ASSESSEE WAS HIT BY THE PROVISION OF SECTION 2(15) OF THE I.T. ACT, 1961. CONSEQUENTLY, REGISTRATION U/S 12A OF THE ACT WAS WITHDRAWN BY THE DI T(E), MUMBAI. THE PENALTY PROCEEDING WAS INITIATED . N OTICE WAS GIVEN TO THE ASSESSEE AND AFTER THE REPLY OF ITA. NO.1356 /M/201 6 A.Y. 2009 - 10 3 THE ASSESSEE , THE PENALTY TO THE TUNE OF RS.1,61,28,828/ - WAS IMPOSED. THE CIT(A) CONFIRMED THE SAID ORDER, THEREFORE, AGGRIEVED BY THIS ORDER THE A SSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO. 1: - 4. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF THE PENALTY LEVIED BY THE AO BY CIT(A). AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE QUANTUM HAS BEEN DELETED BY HONBLE ITAT IN THE RELEVANT A.Y. 2009 - 10 IN ITA. NO. 884/M/2012 DATED 30.03.2017, THEREFORE, IN THE SAID CIRCUMSTANCES; THE PENALTY IS NOT LIABLE TO BE STAND I N ACCORDANCE WITH LAW. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTIONS. THE COPY OF THE ORDER DATED 30.03.2017 OF HONBLE ITAT IN ITA. NO. 884/M/2012 FOR THE A.Y. 2009 - 10 IS ON THE FILE IN WHICH THE HONBLE ITAT HAS SET ASIDE THE QUANTUM OF THE RELEVANT ASSESSMENT YEAR. THEREFO RE, NO DOUBT, IN THE SAID CIRCUMSTANCES, THE PENALTY HAS NO LEG TO STAND. IN VIEW OF THE SAID CIRCUMSTANCES, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND DELETE THE PENALTY. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED T O BE A LLOWED . ITA. NO.1356 /M/201 6 A.Y. 2009 - 10 4 ORDER PRONOUNCED IN THE OPEN COURT ON 29.06. 201 8 . SD/ - SD/ - ( RAJENDRA ) ( AMARJIT SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 29.06. 201 8 . VIJAY / 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. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI