PRAKASH BHAGTWANJI SHAH, MUMBAI V. ITO 12(2)(1), MUMBAI

ITA 1383/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88580 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PERMANAND J
• Assessee Lawyers: BHUMIKA VORA

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - C BENCH. , , BEFORE S/SH.VIJAY PAL RAO, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.1383/MUM/2011, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-2007-08 SHRI PRAKASH BHAGWANJI SHAH, 503, MARINE CHAMBERS, 5TH FLOOR, NEW MARINE LINES,MUMBAI-20 PAN:ALPPS2294G VS IT O 1 2 (2) (1), AAYAKAR BHAVAN, MUMBAI-20 ( #$ / APPELLANT) ( %&#$ / RESPONDENT) !'( !'( !'( !'( ) ) ) ) / ASSESSEE BY : MS. BHUMIKA VORA * ) / REVENUE BY : SHRI PERMANAND J. ! ! ! ! * ** * (+ (+ (+ (+ / DATE OF HEARING : 04.03.2015 ,-' * (+ / DATE OF PRONOUNCEMENT : 04-03-2015 ! ! ! ! 1961 * ** * 254(1) (.( (.( (.( (.( / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! : CHALLENGING THE PENALTY ORDER,DATED 23.12.2010 OF C IT(A)-23,MUMBAI THE ASSESSEE HAS FILED FOLLOWING GROUND OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE PENALTY, ORDER PASSED U/S 271(1)(C) LEVYING A PENALTY OFRS.19,75,141/- IS INV ALID AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED C.LT. (A) ERRED IN LEVYING AN AMOUNT OF RS.19,75,141/- AS PENALTY U/S 271(1)(C) OF THE LT. ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN LEVYING AN AMOUNT OFRS.19,75,141/- AS PENALTY U/S 2 71(1)(C) OF THE IT. ACT ALTHOUGH THERE HAS BEEN NEITHER ANY CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OR ALL OF THE GROUNDS OF APPEAL AT ANY TIME. BRIEF FACTS: 2. ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME O N 31.10.2007 DECLARING TOTAL INCOME AT RS. 6. 82 LAKHS.ASSESSING OFFICER(AO) COMPLETED THE ASSESS MENT ON 30.12.2009 U/S.143(3)OF THE ACT, DETERMINING HIS INCOME AT RS. 2.56 CRORES.DURING TH E ASSESSMENT PROCEEDINGS, THE AO MADE CERTAIN DISALLOWANCES AND ADDITIONS.AGGRIEVED BY TH E ORDER OF AO,THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA),WHO ENHAN CED THE INCOME OF THE ASSESSEE AND ISSUED NOTICE FOR LEVYING PENALTY.THE ASSESSEE FURTHER AGI TATED THE MATTER BEFORE THE TRIBUNAL.VIDE ITS ORDER,DATED 16.05.2012 (ITA/7213/MUM/2010),THE CB ENCH OF THE MUMBAI TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE,IN PART.THE MAJOR ADDITION W AS MADE BY THE AO U/S.40A(3) OF THE ACT. WHILE DECIDING THE APPEAL THE TRIBUNAL HAD REMANDED BACK THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION.OTHER DISALLOWANCE,UNDER THE HEAD BANK CHARGES,WAS ALSO DELETED BY THE TRIBUNAL. 3. AS STATED EARLIER,THE FAA INITIATED PENALTY PROCEED ING U/S 271(1)(C) OF THE ACT FOR CONCEALING INCOME AND FILING INACCURATE PARTICULARS.VIDE HER O RDER,DATED 23.12.2010,THE FAA IMPOSED PENALTY OF RS.19,75,141/-. 4. DURING THE COURSE OF HEARING BEFORE US, THE AUTHORI SED REPRESENTATIVE(AR) STATED THAT THE TRIBUNAL HAD DECIDED THE QUANTUM APPEAL IN FAVOUR O F THE ASSESSEE. DR LEFT ISSUE TO THE DISCRETION OF THE BENCH.WE HAVE HEARD THE RIVAL SUBMISSIONS AN D PERUSED THE MATERIAL BEFORE US.AS THE QUANTUM APPEAL HAS BEEN DECIDED IN FAVOUR OF THE AS SESSEE IN PART AND THE MAIN ISSUE HAS BEEN 2 ITA NO. 1383/M/2011 SHRI PRAKASH BHAGWANJI SHAH RESTORED BACK TO THE FILE OF THE AO,SO,WE ARE OF TH E OPINION THAT THE PENALTY ORDER WOULD NOT SURVIVE.REVERSING THE ORDER OF THE FAA,WE DECIDE TH E EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. AS A RESULT, APPEAL FIL ED BY THE ASSESSEE STANDS ALLOWED. ' 1 !'( * 2 * ( 34. ORDER PRONOUNCED IN TH E OPEN COURT ON 4 TH ,MARCH,2015 . / * ,-' 6 7! 4 9,2015 - * . ? SD/- SD/- ( / VIJAY PAL RAO) ( / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 7! /DATE: 04.03 . 2015. SK / / / / * ** * %( %( %( %( @'( @'( @'( @'( / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / #$ 2. RESPONDENT / %&#$ 3. THE CONCERNED CIT(A)/ A B , 4. THE CONCERNED CIT / A B 5. DR C BENCH, ITAT, MUMBAI / C. %(! , . . . 6. GUARD FILE/ . D &( &( &( &( %( %(%( %( //TRUE COPY// /! / BY ORDER, E / 3 DY./ASST. REGISTRAR , /ITAT, MUMBAI