B.S.N. CONSULTANTS (P)LTD., MUMBAI V. ITO ,WARD 8(1)(2) NOW WARD 13(1)(1), MUMBAI

ITA 1639/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2680 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H M WANARE
• Assessee Lawyers: DINESH SHAH
• Keywords: Business income; Difference of opinion; Revised return; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE HONBLE S/SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR, ( AM ) ./ I.T.A. NO . 1 639 AND 1640 /MUM/20 1 5 ( / ASSESSMENT YEAR S : 20 06 - 07 & 2007 - 08 ) M/S B S N CONSULTANTS (P) LTD. 81, B WIG PARK PLAZA, 8 TH ROAD, 7 BANGLOWS, ANDHERI (W), MIUMBAI - 400061 / VS. THE INCOME TAX OFFICER, WARD 8(1)(2), ROOM BO.225, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AACCB1907E / APPELLANT BY: SHRI DINESH SHAH / RESPONDENT BY SHRI H M WANARE / DATE OF HEARING : 1 8 . 7 .201 6 / DATE OF PRONOUNCEMENT : 26. 7.2016 / O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER : THE SE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE TWO SEPARATE ORDER S PASSED BY THE LD.CIT(A) - 16 , MUMBAI DATED 22.12.2014 FOR THE ASSESSMENT YEAR S 2006 - 07 AND 2007 - 08. SINCE THESE APPEALS PERTAIN TO THE SAME SINGLE AND SAME ISSUE OF PENALTY LEVIED BY THE AO U/S 271(1)(C) , THESE APPEALS ARE CLUBBED AND HE AR D TOGETHER AND ARE BEING DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 2 2. FIRST WE SHALL TAKE UP THE APPEAL FOR THE ASSESSMENT YEAR 2006 - 07 3. ONLY ISSUE RAISED IN THE GROUNDS OF APPEAL IS AGAINST THE PENALTY OF RS.81,190/ - LEVIED BY THE AO AND CONFIRMED BY THE LD.CIT(A) UNDER SECTI ON 271(1)( C) OF THE ACT FOR DECLARING THE INCOME FROM LETTING OUT OF THE OFFICE PREMISES WITH VARIOUS FACILITIES UNDER THE HEAD BUSINESS INCOME WHICH WAS DECLARED UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN THE RETURN FILED IN THE RE - ASSESSMENT PROCEEDINGS U/S 148 OF THE ACT AND ASSESSED ACCORDIN G LY . 4 . FACTS OF THE CAS E ARE THAT THE ORIGINAL RETURN OF INCOME WAS FILED ON 20.11.2006 DECLARING TOTAL INCOME OF RS.81,060 / - . THE SAID RETURN OF INCOME SHOWED INCOME WHICH WAS DERIVED FROM LETTING OU T OF OFFICE PREMISES UNDER THE HEAD BUSINESS AND PROFESSION AND AFTER CHARGING VARIOUS EXPENSES THE NET INCOME RETURNED AMOUNT ED TO RS.1,44,562/ - AND AFTER CLAIMING THE SET OFF OF BROUGHT FORWARD LOSSES THE NET INCOME CAME RS. 81,060/ - . THE SAID RE TURN WAS PROCESSED U/S 143(1) ON 7.4.2009. THEREAFTER, THE AO NOTICED THAT THE ASSESSEE CREDITED RENTAL INCOME AMOUNTING TO RS.8,21,124/ - FROM LETTING OUT OFFICE PREMISES IN THE PROFIT AND LOSS ACCOUNT AND ALSO CLAIMED EXPENSES TO THE TUNE OF RS.6,98 ,439/ - . IN THE ASSESSMENT YEAR 2008 - 09, THE SIMILAR INCOME FROM RENTAL OF PREMISES WAS ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE ASSESSEE ACCEPTED THE ACTION OF THE AO BY NOT FILING APPEAL BEFORE THE ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 3 FIRST APPELLATE AUTHORITY. THE AO REOPENED THE ASSESSMENT FOR THE CURRENT YEAR I.E. ASSESSMENT YEAR 2006 - 07 BY ISSUING NOTICE UNDER SECTION 148. THE ASSESSEE FILED THE RETURN OF INCOME ON 1 7.1.2013 IN RESPONSE TO NOTICE U/S 148 OF THE ACT BY SHOWING THE RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AFTER CLAIMING DEDUCTION U/S 24 OF THE ACT. THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) R.W. SECTION 147 OF THE ACT VIDE ORDER DATED 27.8.2013 ACCEPTING THE INCOME OFFERED BY THE ASSESSEE AT RS.3,22,260/ - AND ALSO IN ITIATED PENALTY PROCEEDINGS U/S 271(1)(C) R.W.S.274 OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE AO ISSUED SHOW CAUSE NOTICE UNDER SECTION 271(1)( C) OF THE ACT TO THE ASSESSEE CALLING IT TO EXPLAIN AS TO WHY THE PENALTY SHOULD NOT BE IMPOSED UPON IT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. BEFORE THE AO, THE ASSESSEE SUBMITTED THAT IT HAD FULLY DISCLOSED ALL THE MATERIAL FACTS IN THE RETURN OF INCOME. IT SUBMITTED THAT MERE SHOWING THE INCOME UNDE R THE WRONG HEAD I.E. INCOME FROM BUSINESS OR PROFESSION INSTEAD OF INCOME FROM HOUSE PROPERTY D DI NOT IN ANY WAY AMOUNT ED TO FILING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. THE AO FINALLY IMPOSED THE PENALTY OF 100% OF THE TAX SOUGHT TO BE EVADED VIDE ORDER DATED 21.2.2014 PASSED UNDER SECTION 271(1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD..CIT(A), WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE AO BY OBSERVING AND HOLDING AS UNDER : ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 4 3. DECISION AFTER CAREFUL PERUSAL OF THE ASSESSMENT ORDER AND WRITTEN SUBMISSIONS OF THE A / R OF THE APPELLANT IT HAS BEEN OBSERVED THAT IN THE RETURN OF INCOME FILED ON 20.11.2006 THE INCOME WA S DECLARED UNDER THE HEAD PROFIT AND GAIN OF BUSINESS AND PROFESSIONS. IT IS ONLY WHEN THE CASE OF THE APPELLANT COMPANY FOR A.Y. 2008 - 09 WAS TAKEN UP FOR SCRUTINY IT WAS DETECTED BY THE A O THAT THE INCOME DECLARED IS IN FACT RENTAL INCOME WHICH SHOULD HAV E BEEN DECLARED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND WAS ASSESSEE AS SUCH. NO APPEAL HAS BEEN FILED AGAINST THE ABOVE SAID ORDER OF THE A O FOR A.Y. 2008 - 09. THE ASSESSMENT PROCEEDINGS FOR A.Y. 2006 - 07 AND 2007 - 08 WAS REOPENED AND NOTICES U / S 148 WERE ISSUED IN BOTH THE ASSESSMENT YEARS. THE APPELLANT COMPANY WAS FILED REVISED RETURN OF INCOME ON 17.01.2013 I.E. AFTER THE PERIOD PRESCRIBED FOR FILING THE REVISED RETURN U / S 139(5). ACCORDING TO THE AO THE APPELLANT COMPANY HAD THE SERVICES OF A QU ALIFIED CHARTERED ACCOUNTANT AT HIS DISPOSAL AND DESPITE THIS FACT THE RENTAL INCOME FROM LET OUT THE PROPERTY HAS BEEN DECLARED UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS AND PROFESSIONS AND DEDUCTION OF EXPENSES WERE CLAIMED AND FURTHER THE CARRY FO RWARD BUSINESS LOSS WAS ALSO ADJUSTED. IT HAS BEEN FURTHER STATED BY THE A O THAT IF THE REASSESSMENT PROCEEDINGS HAD NOT BEEN INITIATED BY ISSUE OF NOTICE U / S 148 THE APPELLANT WOULD HAVE BEEN SUCCESSFUL IN EVADING INCIDENCE OF TAX ON THE INCOME EARNED BY IT DURING THE INSTANT ASSESSMENT YEAR. THE AO HAS RELIED ON THE RECENT JUDGMENT OF THE SUPREME COURT IN THE CASE OF MAK DATA (P) LTD. VS. CIT 358 ITR 593 BESIDES OTHER JUGMENTS DISCUSSED SUPRA. ACCORDING TO THE A/R OF THE APPELLANT THERE ARE TWO VIEWS POSSIBLE IN SUCH CASES BECAUSE IT IS DEBATABLE ISSUE THAT WHETHER INCOME FROM LETTING OUT OF PROPERTY IS INCOME FROM HOUSE PROPERTY OR BUSINESS INCOME FOR WHICH HE HAS RELIED ON SOME JUDGMENTS WHICH HAVE BEEN DISCUSSED SUPRA. IT HAS BEEN FURTHER STATED BY HIM THAT THE ORIGINAL RETURN WAS THE CORRECT RETURN OF INCOME AND IT IS ONLY TO AVOID LONG DRAWN LITIGATION THE REVISED RETURN WAS FILED ON THE ADVICE OF TAX EXPERT BY DECLARING RENTAL INCOME AS INC OME FROM HOUSE PROPERTY. IT HAS BEEN FURTHER STATED BY HIM THAT THE CASE LAWS RELIED UPON BY THE AO ARE NOT APPLICABLE TO THE FACTS OF THE CASE. HE HAS CLAIMED CERTAIN EXPENSES WHICH ACCORDING TO HIM OR TO HAVE BEEN ALLOWED AND THESE SHOULD BE ALLOWED FOR THE PURPOSE OF PENALTY. ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 5 THE A/R OF THE APPELLANT HAS NOT BEEN ABLE TO BRING ON RECORD THAT HOW IN THE PRESENT CASE THE RENTAL INCOME EARNED BY THE APPELLANT COMPANY COULD BE DECLARED AS RENTAL INCOME IN THE ORIGINAL RETURN OF INCOME AND ALSO THE REASON FOR CLAIMING THE EXPENSES AND ADJUSTMENT OF CARRY FORWARD BUSINESS LOSS BECAUSE NO REASON HAS BEEN GIVEN TO MAKE THE ISSUE DEBATABLE THAT WHETHER IN THE CASE OF APPELLANT COMPANY THE RENTAL INCOME COULD HAVE BEEN DECLARED UNDER THE HEAD PROFITS AND GAIN FROM BUSINESS AND PROFESSIONS. THE CASE LAWS RELIED UPON BY THE A/R OF THE APPELLANT ARE DISTINGUISHABLE ON FACTS AND THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE MAK DATA (P) LTD. IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT AS UNDER: - 'VOLUNTARY DISCLOSURE DOES NOT RELEASE ASSESSEE FROM MISCHIEF OF PENAL PROCEEDINGS UNDER SECTION 271(1)(C) IN TERMS OF SECTION 271(1)(C), ASSESSING OFFICER HAS TO SATI SFY WHETHER PENALTY PROCEEDINGS BE INITIATED OR NOT DURING COURSE OF ASSESSMENT PROCEEDINGS AND ASSESSING OFFICER IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING WHERE OFFER OF SURRENDER OF CERTAIN AMOUNT RECEI VED AS SHARE APPLICATION MONEY WAS MADE BY ASSESSEE IN VIEW OF DETECTION MADE BY ASSESSING OFFICER IN SEARCH CONDUCTED IN CASE OF ASSESSEE'S SISTER CONCERN, SAID SURRENDER OF INCOME NOT BEING VOLUNTARY IN NATURE, AUTHORITIES BELOW WERE JUSTIFIED IN LEVYING PENALTY UNDER SECTION 271 (L)(C)' THERE IS NOT EVEN A WHISPER IN THE WRITTEN SUBMISSIONS OF THE A/R OF THE APPELLANT ON THE ABOVE SAID JUDGMENT AS IT IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE BECAUSE THE APPELLANT HAD FILED REVISED RETURN ONLY AFT ER THE DETECTION BY THE AO. HENCE THE GROUNDS OF APPEAL IS DISMISSED 5 . THE LD. AR VEHEMENTLY SUBMITTED BEFORE US THAT THE ASSESSEE HAD FULLY DISCLOSED ALL THE MATERIAL FACTS REGARDING RENTAL INCOME EARNED FROM LETTING OUT OF OFFICE PREMISES IN THE RETURN OF INCOME FILED ORIGINALLY AND THUS DID NOT CONCEAL OR FILE ANY INACCURATE PARTICULARS . THE LD. AR FURTHER SUBMI TT ED THAT THE PENALTY UNDER SECTION 271(1) ( C ) COULD NOT BE IMPOSED ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 6 IN THE CASE OF CHANGE OF HEADS OF INCOMES AS IN THE ASSESSEE S CASE. THE LD. COUNSEL SUBMITTED THAT INITIALLY THE ASSESSEE SHOWED RENTAL INCOME FROM LETTING OUT THE OFFICE PREMISES UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION BY CLAIMING EXPENSES AGAINST THE SAID INCOME. HOWEVER, LATER ON WHEN THE NOTICE U/ S 148 ISSUED BY THE AO TO THE ASSESSEE, THE ASSESSEE CHANGED HEAD OF INCOME FROM BUSINESS TO HOUSE PROPERTY WITH S A ME PARTICULARS OF INCOME. THE LD.COUNSEL ALSO SUBMI TT ED THAT I N THE ASSESSMENT YE A R 2008 - 09, THE INCOME WAS ASSESSED BY THE AO UNDER THE HE A D INCOME FROM HOU S E PROPERTY AND THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE DECISION OF THE AO AND THUS REACHED FINALITY . THE ASSESSEE FOLLOWING THE SAME PARAMETER RETURNED THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN THE RE TURN OF INCOME FILED TO THE RESPONSE TO NOTICE U/S 148 OF THE ACT ISSUED BY THE AO IN ORDER TO AVOID PROTECTED LITIGATION. IN DEFENCE OF HIS ARGUMENTS, THE LD. AR RELIED UPON THE FOLLOWING DECISIONS: A. MIMOSA INVESTMENT CO.(P) LTD V/S ITO (2009) 28 SOT 0470 =(2010) 6 ITR 0789 (MUM) ; B.ITO V/S ROBORANT INVESTMENTS (P)LTD (2006) 7 SOT 0181 THE LD. AR ALSO SUBMI TT ED THAT WITHDRAWAL OF CLAIM OF CERTAIN EXPENSES BY FILING REVISED RETURN OR DISALLOWANCE OF ANY EXPENSES DUE TO DIFFERENCE OF OPINION , DID NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE LD. AR CITED THE DECISION OF THE HONBLE DELHI ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 7 HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX BACARDI MARTINI INDIA LTD . (2007) 288 ITR 0585 (DEL) IN SUPPORT OF HIS ARGUMENT. FINALLY, THE LD. AR PRAYED THAT IN VIEW OF THE RATIO LAID DOWN IN THE ABOVE DECISION, PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT(A) WAS AGAINST THE SPIRIT OF LAW AND BE DELETED BY ALLOWING THE APPEAL OF THE ASSESSEE. ON THE CONTRARY, THE LD. DR STRONGLY OPPOSED THE ARGUMENT S OF THE LD.AR BY STATING THAT THE ASSESSEE HAD WILLFULLY SHOWN INCOME UNDER THE HEAD BUSINESS INCOME WITH THE MOTIVE TO REDUCE TAX LIABILITY. WHEREAS, AS A MATTER OF FAC T, THE INCOME WAS OF RENTAL NATURE WHICH WAS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY . THE LD.DR STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW WHILE PRESSING FOR DISMISSAL OF THE ASSESS E ES APPEAL. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAWS RELIED UPON BY THE LD AR OF THE ASSESSEE . WE FIND THAT THE ASSESSEE HAS SHOWN INCOME FROM RENT OF OFFICE P REMISES UNDER THE HEAD BUSINESS AND PROFESSION AND ALSO CLAIMED EXPENSES AGAINST THAT INCOME CALCULAT ING THE INCOME FROM BUSINESS RS.1,44,562/ - AND AFTER ADJUSTMENT OF BROUGHT FORWARD LOSSES FROM ASSESSMENT YEARS 2004 - 05 OF RS.63,500 , THE RETURNED IN COME CAME TO RS.81,062/ - . THE ASSESSEES INCOME FROM RENT OF OFFICE PREMISES FOR ASSESSMENT YEAR 2008 - 09 WAS ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY BY THE AO AND THE ASSESSEE DID NOT FILE ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 8 ANY APPEAL AGAINST THE ORDER OF THE AO AN D THUS ACCEPTE D THE ASSESSMENT AS MADE BY T HE AO. NOW THE AO ON THE B ASIS OF ASSESSMENT YEAR 2008 - 09 REOPENED THE ASSESSMENT ON 26.11.2012 BY ISSUING NOTICE U/S 148. THE ASSESSEE ITSELF SHOWED AND RETURN ED THE INCOME FROM RENTING OF OFFICE PREMISES UNDER THE HEAD INC OME FROM HOUSE PROPERTY AFTER CLAIMING THE DEDUCTION U/S 24 OF THE ACT THEREBY SHOWING THE INCOME OF RS.3,22,258/ - . NOW, THE QUESTION BEFORE US, WHETHER THE ASSESSEES TREATMENT OF INCOME FROM BUSINESS IN THE ORIGINAL RETURN AMOUNT ED TO FILING INACCURATE PARTICULARS OF INCOME AND LIABLE FOR PENALTY U/S 271(1)(C ) . IN OUR OPINION , THE ASSESSEE HAS FULLY DISCLOSED ALL THE PARTICULARS OF INCOME IN THE RETURN OF INCOME FILED WHICH CAN NOT BE TERMED AS INACCURATE PARTICULARS BY THE ASSESS EE FOR THE INCOME. W E ARE OF THE CONSIDERED VIEWS THAT IT COULD NOT BE CONSTRUED AS FILING OF INACCURATE PARTICULARS OF INCOME . IN THE CASE OF MIMOSA INVESTMENT CO.(P) LTD (SUPRA) IT HAS BEEN HELD AS UNDER : THE ASSESSEE HAS DISCLOSED ALL THE RELEVANT MAT ERIAL FACTS FOR THE PURPOSE OF COMPUTATION OF TOTAL INCOME AND HAS OFFERED EXPLANATION IN THIS REGARD, WHICH WAS NOT FOUND FALSE BY THE ASSESSING OFFICER. THE EXPLANATION OF ASSESSEE REGARDING CLAIM OF INTEREST EXPENDITURES IS BONA FIDE. THE ASSESSEE HAS SUBSTANTIATED HIS EXPLANATION. WHEN THE ASSESSEE HAS FURNISHED ALL THE MATERIAL FACTS FOR THE PURPOSE OF COMPUTATION OF TOTAL INCOME THE ASSESSING OFFICER IS DUTY BOUND TO CALCULATE CORRECT TOTAL INCOME IN ACCORDANCE WITH LAW, WHICH MAY BE DIFFERENT THAN T HE TOTAL INCOME CALCULATED BY THE ASSESSEE. MERE FACT THAT THE ASSESSING OFFICER WHILE DISCHARGING HIS DUTY IS RECALCULATING THE TOTAL INCOME IN ACCORDANCE WITH LAW WHICH IS NOT THE SAME AS CALCULATED BY THE ASSESSEE, IT CANNOT BE HELD THAT THE ASSESSEE HA S CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME OR THERE IS A DEEMED CONCEALMENT IN ACCORDANCE WITH EXPLANATION 1 TO SECTION 271(1). T HIS IS NOT A FIT ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 9 CASE, WHERE PENALTY UNDER SECTION 271(1)( C ) READ WITH EXPLAN ATION 1 CAN BE INVOKED. T HE PENALTY OF RS. 9,21,803 LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)( C ) OF THE ACT IS CANCELLED RECALCULATION OF INCOME BY THE AO WHICH IS DIFFERENT FROM THE INCOME RETURNED BY THE ASSESSEE, IN THAT CASE, IT CANNOT BE SAID THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR CONCEALED PARTICULARS OF INCOME. THE ASSESSEE HAS FULLY DISCLOSED ALL THE FACTS QUA HIS INCOME , AND THEREFORE THE PENALTY CANNOT BE LEVIED. IN THE CASE OF ROBORANT INVESTMENTS (P)LTD (SUPRA) HELD THAT WHERE THE FULL AND COMPLETE DISCLOSER IS MADE BY THE ASSESSEE , AND IF THE INCOME RETURNED B Y T HE ASSESSEE UNDER A PARTICULAR HE A D SO ASSESSED BY T HE AO UNDER ANOTHER HEAD OF INCOME, PENALTY IS NOT IMPOSABLE UNDER SECTION 271(1)( C) OF THE ACT. 7 . IN OUR CONSIDERED VIEW THE FACTS ARE SQUARELY COVERED BY THE RATIO LAID DOWN IN THE AFOREMENTIONED DECISIONS AND WE THEREFORE, RESPECT FULLY FOLLOWING THE SAME, SET ASIDE THE ORDER OF LD.CIT(A) AND THE AO IS DIRECTED TO DELETE PENALTY ACCORDINGLY . 8. I.T.A. NO.1640/MUM/2015 9 . WE HAVE ALREADY DECIDED AN IDENTICAL ISSUE IN ITA NO. 1639/MUM/2015 (AY - 2006 - 07) AND OUR DECISION IN ITA NO.1639/MUM/2015 WOULD , MUTATIS MUTANDIS , WOULD APPLY TO THIS APPEAL AS WELL. THE AO IS DIRECTED ACCORDINGLY. ITA NO. 1639/MUM/2015 AND 1640/MUM/2016 10 10 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE STAND ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26TH JULY, 2016 . 26TH JULY, 2016 SD SD (JOGINDER SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 26TH JULY, 2016 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI