SANJAY DEV SHARMA, NEW DELHI V. ITO (IT) 2(1), MUMBAI

ITA 1602/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2584 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: SANJAY R PARIKH
• Section: 54; 271(1)(c); 143(3)

Judgement Text

AAYAKR APILAIYA AIQAKRNA AAYAKR APILAIYA AIQAKRNA AAYAKR APILAIYA AIQAKRNA AAYAKR APILAIYA AIQAKRNA G NYAAYAPIZ MAMUBA[ NYAAYAPIZ MAMUBA[ NYAAYAPIZ MAMUBA[ NYAAYAPIZ MAMUBA[- -- - MAO. MAO. MAO. MAO. IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , . BEFORE SRI MAHAVIR SINGH, JM AND SRI M BALAGANESH, AM AAYAKR APILA SAM AAYAKR APILA SAM AAYAKR APILA SAM AAYAKR APILA SAM . / ITA NO. 1602/MUM/2017 ( INAQA-ARNA BAYA- / ASSESSMENT YEAR 2009-10) MR. SANJAY DEV SHARMA C/O, MRS. PRATIBHA SHARMA, E- 18, GREATER KAILASH, PART-1, NEW DELHI-110048 VS. THE INCOME TAX OFFICER, (INTERNATIONAL TAXATION) - 2(1), MUMBAI ( APILAAQAI APILAAQAI APILAAQAI APILAAQAI - -- - / APPELLANT) .. ( P`%YAQAAI P`%YAQAAI P`%YAQAAI P`%YAQAAI- -- - / RESPONDENT) . / PAN NO. AAKPS9697R ! / APPELLANT BY : SHRI MR. SANJAY R. PARIKH, AR #$ ! / RESPONDENT BY : SHRI CHAUDHARY ARUN KUMAR SINGH, DR ! () / DATE OF HEARING: 27 - 02 - 2019 ! () / DATE OF PRONOUNCEMENT : 7 - 0 3 - 2019 AADOSA AADOSA AADOSA AADOSA / O R D E R , / PER MAHAVIR SINGH, JM: THIS APPEAL FILED BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-58, MUMBAI [IN SHORT CIT(A)], IN APPEALS NO. CIT(A)-58/181/2014-15 VIDE ORDER DATED 16.11.2016. THE 2 ITAS NO. 1602/MUM/2017 ASSESSMENT WAS FRAMED BY THE INCOME TAX OFFICER, WA RD 2(1) MUMBAI (IN SHORT ITO/ AO) FOR THE A.Y. 2009-10 VIDE ORDER D ATED 26.12.2011 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER THE ACT). THE PENALTY UNDER DISPUTE WAS LEVIED BY ITO WARD 2(1) U NDER SECTION 271(1)(C) OF THE ACT VIDE ORDER DATED 25.03.2014. 2. THE SOLE ISSUE IN THIS APPEAL IS AGAINST CONFI RMATION OF PENALTY UNDER SECTION.271(1)(C) OF THE ACT BY THE CIT(A). FOR THIS ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE CIT (APPEALS) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE LOWER AUTHORITIES HAVE ERRED IN IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT) AGAINST THE ADDITION MADE BY LOWER AUTHORITY WHICH IS YET TO BE DECIDED (ITAT APPEAL NO. 1911/MUM/2013 DT. 08.03.2013). IN THE LIGHT OF PENDING MATTER WITH RESPECT TO NOT ALLOWING DEDUCTION UNDER SECTION 54 OF THE INCOME TAX ACT 1961 WITH INCOME TAX APPELLATE TRIBUNAL THE CONCEALMENT OF INCOME IS YET TO BE ASCERTAINED, HENCE THE FINDINGS OF THE CIT (APPEALS) ARE OPPOSED TO THE LEGAL INTENT OF THE LAW. 3. AT THE OUTSET, IT IS NOTICED THAT THE CIT(A) HAS DISMISSED THE APPEAL IN LIMINE WITHOUT ADMITTING THE APPEAL BEING DELAYE D BY 73 DAYS. THERE WAS DELAY OF 73 DAYS IN FILING THE APPEAL BEFORE TH E CIT(A) AND THE CIT(A) HAS DISMISSED THE APPEAL BY NOT CONDONING THE DELAY . EVEN THE CIT(A) PASSED EXPARTE ORDER AND HAD FIXED THE APPEAL ON TW O OCCASIONS. THE 3 ITAS NO. 1602/MUM/2017 FACTS ARE THAT THE APPEAL WAS FIXED ON 4.12.2015 AN D NEXT ON 6.10.2016 BEING LAST OPPORTUNITY. IT IS NOT ON RECORD WHETHE R THE NOTICES WERE SERVED ON THE ASSESSEE OR NOT. EVEN SR DEPARTMENTAL REPRES ENTATIVE COULD NOT ASCERTAIN WHETHER THESE NOTICES WERE SERVED ON THE ASSESSEE. AS THE CIT(A) DECIDED THE APPEAL EXPARTE WITHOUT GIVING A FINDING THAT WHETHER THESE TWO NOTICES WERE SERVED ON THE ASSESSEE OR NO T, HENCE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE APPEAL BACK TO HIS FILES FOR DECIDING FIRST CONDONA TION OF DELAY IN CASE THE ASSESSEE FILED CONDONATION PETITION BEFORE HIM. CON SEQUENTLY, IF THE DELAY IS CONDONED, HE WILL ADJUDICATE THE LEVY OF PENALTY UNDER SECTION.271(1)(C) OF THE ACT. THEREFORE, WE SET ASIDE THE ORDER OF T HE CIT(A) AND THE MATTER IS RESTORED TO HIS FILE FOR FRESH ADJUDICATION AS P ER TERMS INDICATED ABOVE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7-03-2019 . SD/- SD/- ( . / M BALAGANESH) ( /MAHAVIR SINGH) ( / ACCOUNTANT MEMBER) ( / JUDICIAL MEMBER) MUMBAI, DATED: 7 - 03-2019 . BKP/SR/.PS 4 ITAS NO. 1602/MUM/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. #$ / THE RESPONDENT. 3. /( ( ) / THE CIT(A) 4. /( / CIT 5. 23 #(45 , ) 45 , / DR, ITAT, MUMBAI 6. 67 / GUARD FILE. / BY ORDER, $2( #( //TRUE COPY// / ( ASSTT. REGISTRAR) !', / ITAT, MUMBAI