ACIT CIR 27(1), NAVI MUMBAI V. JYOTI CONTROLS, MUMBAI

ITA 1719/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1884 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM ITA NO. 1719 / MUM/20 1 7 ( ASSESSMENT YEAR : 2009 - 10 ) ACIT CIR 27(1) R.NO.415, 4 TH FLOOR, TOWER NO.6, VASHI, STATION COMPLEX, NAVI MUMBAI - 400 703 VS. M/S. JYOTI CONTROLS 412 SAIDHAM TILAK ROAD VIKRANT CIRCLE GARODIYA NAGAR, GHATKOPAR (E), MUMBAI 400 077 PAN/GIR NO. AAEFJ7515E ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY SHRI RAJEEV GUBGOTRA ASSESSEE BY NONE DATE OF HEARING 13 / 11 /201 8 DATE OF PRONOUNCEMENT 16 / 11 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 25, MUMBAI DATED 19/12/2016 FOR A.Y.2009 - 10 IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) O F THE IT ACT. 2. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT PENALTY SO IMPOSED HAS BEEN DELETED BY THE CIT(A) AFTER FOLLOWING THE ORDER OF THE TRIBUNAL WHEREIN QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL. 3. PRECISE OBSER VATION OF CIT(A) WAS AS UNDER: - ITA NO. 1719/MUM/2017 M/S. JYOTI CONTROLS 2 5. ACCORDING TO ISSUE NO. 2, THE ASSESSES HAS CHALLENGED THE CONFIRMATION OF DISALLOWANCE TO THE TUNE OF RS. 1,23,12,500/ - BEING AMOUNT WRITTEN OFF IN RESPECT OF DISCOUNT TO SIEMENS LTD, THE LEARNED REPRESENTATIVE OF THE AS SESSEE HAS ARGUED THAT THE SIEMENS LTD. HAS CONFIRMED THE RETENTION MONEY TO THE TUNE OF RS.2,16,19,897/ - . THEREFORE, IN THE SAID CIRCUMSTANCES AN AMOUNT OF RS. 1,23,12,500/ - WHICH IS LESS THAN THE SAID RETENTION AMOUNT IS LIABLE TO BE ALLOWED IN THE INTER EST OF JUSTICE. IT IS ALSO ARGUED THAT THE DETAILS OF RETENTION MONEY HELD BY THE SIEMENS LTD. HAS ALSO BEEN PLACED ON RECORD THEREFORE, THE RETENTION MONEY TO THE TUNE OF RS.2, 76,79 ,897/ - AS ON 31.03.2009 IS NOT IN DISPUTE BUT THE CIT(A) HAS WRONGLY CONFI RMED THE DISALLOWANCE TO THE TUNE OF RS.1,23,12,500/ - WHICH IS REQUIRED TO BE ALLOWED IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND LEARNED REPRESENTATIVE OF THE DEPARTMENT HAS PLACED RELIANCE UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. ON AP PRAISAL OF THE ORDER ON RECORD IT CAME INTO NOTICE THAT THE ASSESSING OFFICER BY VIRTUE OF LETTER DATED 08.11.2011 REQUISITIONED THE RELEVANT RECORD FROM M/S. SIEMENS LTD. AND IN REPLY TO THIS LETTER. M/S. SIEMENS LTD WAS HAVING THE RETENTION AMOUNT TO THE TUNE OF RS.2.16.19.897A AS ON 31.03.2009, M/S. SIEMENS LTD ALSO FURNISHED THE DETAILS OF RETENTION MONEY WHICH WAS HELD BY THEM. IT IS NOT IN DISPUTE THAT THE RETENTION MONEY WHICH WAS HELD BY M/S. SIEMENS LTD WAS MORE THAN THE WRITTEN OFF AMOUNT OF RS. 1 ,23,12,500/ - . IN VIEW OF THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE CIT(A) HAS WRONGLY CONFIRMED THE DISALLOWANCE OF RS.1,23,12,500/ - BEING AMOUNT OF WRITTEN OFF IN RESPECT OF QUANTITY DISCOUNT TO M/S. SIEMENS LTD. THEREFORE WE SET ASIDE THE FINDIN G OF THE CIT(A) ON THIS ISSUE AND ALLOWED THE WRITTEN OFF AMOUNT OF RS. 1,23,1 2,500/ - BEING AMOUNT WRITTEN OFF IN RESPECT OF QUANTITY DISCOUNT TO M/S. SIEMENS LTD, ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE.' 7. IN VI EW OF THE ABOVE, AS THE QUANTUM ADDITION ITSELF DOES NOT SURVIVE, THERE IS NO QUESTION OF LEVY OF PENALTY U/S 271(1)(C), SINCE PENALTY CANNOT STAND ON ITS OWN WITHOUT THE STRENGTH AND SUPPORT OF THE QUANTUM ADDITION. THE PENALTY LEVIED BY THE AO IS THEREFO RE CANCELLED. 4. IT IS CLEAR FROM THE ORDER OF CIT(A) THAT QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL. ACCORDINGLY, PENALTY HAS NO LEGS TO STAND. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR DELETING THE PENALTY SO IMPOSED. ITA NO. 1719/MUM/2017 M/S. JYOTI CONTROLS 3 5. IN THE R ESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 / 11 /201 8 SD/ - ( AMARJIT SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DAT ED 16 / 11 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY O RDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//