SATYA PRAKASH SINGH, MUMBAI V. DCIT 24(3), MUMBAI

ITA 1890/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4099 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJORE SATISHCHANDRA
• Keywords: Period of limitation; Reasonable cause; Valuation report; Time period of passing order; Condonation of delay
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI R.C. SHARMA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1890 /MUM/2017 ASSESSMENT Y EAR: 2009 - 10 SHRI SATYA PRAKASH SINGH, 4 TH FLOOR, LAXMI NIWAS, LAXMI SINGH ESTATE, S.V. ROAD, GOREGA ON (W), MUMBAI - 400062 PAN: AAGPS0472A VS. THE DY. COMMISSIONER OF INCOME TAX - 24(3), INCOME TAX OFFICE, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI YOGESH JOIJODE (CA ) REVENUE BY : SHRI RAJORE SATISHCHANDRA (D R) DATE OF HEARING: 23 /10 /201 8 DATE OF PRONOUNCEMENT: 26 / 10 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.10.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 42 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE PENALTY ORDER PASSED U/S 271 (1) (C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2 . IN THE PRESENT CASE, THE ASSESSEE HAD NOT FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED BY THE AO ON THE BASIS OF FINDINGS RECORDED IN THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2007 - 08. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE FILED RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 78,21,414/ - . THE ASSESSMENT WAS COMPLETED U/S 143 (3) READ WITH SECTION 147 OF THE ACT DETERMINING THE TOTAL INCOME AT RS. 1,14,83,930/ - . ACCORDINGLY PENALTY PROCEEDIN G WAS INITIATED 2 ITA NO. 1890 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 U/S 271 (1)(C) OF THE ACT FOR FURNISHING I NACCURATE PARTICULARS OF INCOME. IN THE FIRST APPEAL, THE LD. CIT (A) CONFIRMED THE PENALTY LEVIED BY THE AO U/S 271 (1) (C) OF THE ACT. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND : - 1. THE HONORABLE COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN CONFIRMING THE PENALTY OF RS. 22,81,950/ - U/S 271 (1) (C) OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FACTS AND SUBMISSION OF THE APPELLANT. IT IS SUBMITTED THAT APPELLANT HAS NOT FURNISHED ANY INACCURATE PARTICULARS AND PENALTY HAS BEEN LEVIED BY THE LEARNED ASSESSING OFFICER ON ADDITION MADE IN THE ASSESSMENT U/S 143 (3) R.W.S. 148 OF THE INCOME TAX ACT , 1961 BY TREATING THE SAME AS CONCEALED INCOME. IT IS TO NOTE THAT APPELLANT HAS CLAIMED COST ON THE BASIS OF VALUATION REPORT OF REGD. VALUER AND THEREFORE, CONSIDERING THE APEX COURTS DECISION IN CASE OF DILIP N SHROFF, SUCH PENALTY LEVIED SHOULD BE CA NCELLED. ACCORDINGLY, IT IS PRAYED TO YOUR HONOUR TO DELETE THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER FOR THE YEAR UNDER CONSIDERATION. 4. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY OF 19 DAYS IN FILING THE PRESENT APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT FILE THE PRESENT APPEAL WITHIN THE LIMITATION PERIOD FOR THE REASON THAT THE ORDER OF THE LD. CIT(A) HA D BEEN MISPLACED BY THE CONCERNED STAFF. SINCE, THE DELAY IS NOT INTENTIONAL OR DU E TO INACTION ON THE PART OF THE ASSESSEE, THE SAME MAY BE CONDONED AND THE ASSESSEE MAY BE ALLOWED TO ARGUE THE CASE ON MERITS. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE SUBMISSION MADE BY THE LD. COUNSEL ON THE GROUND THAT T HE ASSESSEE HAS FAILED TO DEMONSTRATE THAT THERE WAS A REASONABLE CAUSE WHICH PREVENTED THE ASSESSEE FROM FILING THE PRESENT APPEAL. 3 ITA NO. 1890 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 5. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT THE DELAY IS NOT INORDINATE AND THE EXPLANATION GIVEN BY THE ASSESSEE IS SUFFICIENT TO CONDONE THE DELAY OF 19 DAYS IN FILING THE PRESENT APPEAL. WE ACCORDINGLY ALLOW ED THE APPLICATION IN THE FORM OF AFFIDAVIT SUBMITTED BY THE ASSESSEE IN THE INTEREST OF JUSTICE AND CONDONED THE DELAY AND FURTHER ASKED THE LD. COUNSEL TO ARGUE THE CASE ON MERITS. 6 . AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT QUANTUM APPEAL IN THIS CASE HAS BEEN SET ASIDE TO THE FILE OF AO, THEREFORE, THE IMPUGNED ORDER DOES NOT SURVIVE. 7 . T HE LD. DR DID NOT CONTRO VERT THE FACT AND FAIRLY ADMITTED THAT THE TRIBUNAL HAS SET ASIDE THE QUANTUM APPEAL TO THE FILE OF AO FOR PASSING ASSESSMENT ORDER AFRESH. 8 . WE HAVE PERUSED THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS THE ORDER PASSED BY THE COORDINATE BENCH I N THE QUANTUM APPEAL. SINCE, T HE COORDINATE BENCH VIDE CONSOLIDATED ORDER DATED 19.04.2018 HAS SET ASIDE THE QUANTUM APPEAL OF THE ASSESSEE TO THE FILE OF AO FOR DETERMINING THE ISSUE AFRESH IN TERMS OF THE ORDER, THE IMPUGNED ORDER DOES NOT SURVIVE. ACCOR DINGLY, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A). HOWEVER, THE AO IS AT LIBERTY TO PASS PENALTY ORDER AFRESH, IF NEEDED AFTER PASSING ASSESSMENT ORDER AFRESH IN TERMS OF THE ORDER PASSED BY THE CO - ORDINATE BENCH. IN THE RESULT, APPEAL FILED BY TH E ASSESSEE FOR ASSESSMENT YEAR 2009 - 2010 IS ALLOWED , IN TERMS INDICATED HEREINABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER, 2018. SD/ - SD/ - ( R.C. SHARMA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 10 / 201 8 ALINDRA, PS 4 ITA NO. 1890 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI