DHARMESH D SABHARWAL, MUMBAI V. ACIT CIR 11(1), MUMBAI

ITA 1890/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7536 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 12-02-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 25-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DURGESH SUMROTT
• Assessee Lawyers: VINAY SETHY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI A.L.GEHLOT, AM & SMT. P.MADHAVI DEVI, JM I.T.A.NO.1890/MUM/2009 - A.Y 2001-02 DHARMESH D. SABHARWAL, SHIV SMRITI, 32, UNION PARK, KHAR, MUMBAI 400 052 PAN NO.AAGPD 9016 M VS. ASST. C.I.T., CIRCLE 11(1), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINAY SETHY, C.A REVENUE BY : SHRI DURGESH SUMROTT, DR O R D E R PER P.MADHAVI DEVI, JM: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST CI T(A)S ORDER DATED 23/01/2009. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ORDER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT AMOUNTING TO RS.10,53,000/-. 3. THE REGISTRY HAS PUT AN OBJECTION THAT THE ASSESSEE HAS PAID LESS FEE OF RS.9500/-. THE LD.COUNSEL FOR THE ASSES SEE SUBMITTED THAT AS PER THE DECISION OF THE HONBLE PATNA HIGH COUR T IN THE CASE OF DR.AJITH KUMAR PANDEY VS. ITAT REPORTED IN 310 ITR 195, IN THE CASE OF PENALTY THE APPEAL FEE PAYABLE IS OF RS.500 ONLY . IN SUPPORT THEREOF HE HAS FILED BEFORE US A COPY OF THE SAID ORDER. IN VIEW OF THE SAME, WE ARE SATISFIED THAT THE APPEAL FEE HAS RIGHTLY BE EN PAID BY THE ASSESSEE AT RS.500/-. THIS OBJECTION OF THE REGISTR Y IS OVER-RULED. 4. COMING TO THE MERITS OF THE CASE, BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RE TURN OF INCOME 2 DECLARING TOTAL INCOME OF RS.43,15,480 FOR THE RELE VANT ASSESSMENT YEAR. THE ASSESSEE MAINTAINS ACCOUNTS ON CASH BASIS AND DURING THE YEAR HE HAD RECEIVED A SUM OF RS.15 LAKHS AS ADVANC E FROM CINEYUG WHICH HE HAS NOT OFFERED FOR TAXATION. THE AO DISAL LOWED THE SAME AND THE CIT(A) CONFIRMED THE ORDER OF THE AO. ON APPEAL , THE ITAT INITIALLY CONFIRMED THE ORDER OF THE CIT(A) AND AFTER RECALL OF THE ORDER IN M.A.NO.422/M/09 THE APPEAL WAS AGAIN HEARD AND THE ADDITION WAS DELETED AFTER OBSERVING THAT THE ASSESSEE HAD RECEI VED RS.15 LAKHS FROM CINEYUG AS AN ADVANCE FOR DIRECTING A FILM AND THIS AMOUNT HAS ALSO BEEN REFUNDED AS THE FILM WAS NEVER DIRECTED B Y THE ASSESSEE. MEANWHILE, AO INITIATED PENALTY PROCEEDINGS AND LEV IED THE PENALTY @ 200% OF THE TAX SOUGHT TO BE EVADED. THE CIT(A) CON FIRMED THE PENALTY AND THE ASSESSEE IS IN SECOND APPEAL BEFORE US. 5. AT THE TIME OF HEARING, THE LD.COUNSEL FOR THE A SSESSEE HAS PLACED BEFORE US A COPY OF THE TRIBUNALS ORDER IN I.T.A.NO.9207/MUM/2004 DATED 30 TH DECEMBER,09 DELETING THE ADDITION. AS THE QUANTUM ADDITION ITSELF HAS BEEN D ELETED, THE PENALTY ORDER HAS NO LEGS TO STAND AND ACCORDINGLY THE APPE AL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALL OWED. ORDER PRONOUNCED ON THIS 22 ND DAY OF FEBRUARY, 2010. SD/- SD/- (A.L.GEHLOT) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 22 ND FEBRUARY, 2010. P/-* 3 COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY /ASST.REGISTRAR,ITAT MUMBAI.