ANUSHAKTI CHEMICALS & DRUGS LIMITED (NOW MERGED WITH AARTI INDUSTRIES LIMITED FORMERLY AARTI HEALTHCARE LIMITED), MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 15(1)(1), MUMBAI

ITA 2014/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5340 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 2014 / MUM . /2018 ( ASSESSMENT YEAR : 20 10 11 ) ANUSHAKTI CHEMICALS & DRUGS LTD. (NOW MERGED WITH AARTI INDUSTRIES LTD.) FORMERLY AARTI HEALTHCARE LTD. 71, UDYOG KSHETRA, 2 ND FLOOR MULUND GOREGAON LINK ROAD MULUND (W), MUMBAI 400 020 PAN AABCA2787L . APPELLANT V/S DY . COMMISSIONER OF INCOME TAX CIRCLE 15(1)(1) , MUMBAI . RESPONDENT ASSESSEE BY : SHRI BHAVIN J.M. DEDHIA A/W MISS NAINEE N. SAVLA REVENUE BY : SHRI S.K. JAIN DATE OF HEARING 11.04.2019 DATE OF ORDER 29.05.2019 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 1 1 TH DECEMBER 2017, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 2 4 , MUMBAI, CONFIRMING PENALTY OF ` 2,33,38,168 , IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 10 11 . 2 ANUSHAKTI CHEMICALS & DRUGS LTD. 2 . AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE S RELATING TO VARIOUS ADDITIONS ON THE BASIS OF WHICH PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS IMPOSED, IN THE MEANWHILE, HAVE BEEN RESTORED BACK TO THE ASSESSING OFFICER BY THE TRIBUNAL WHILE DECIDING ASSESSEES QUANTUM APPEAL IN ITA NO. 2079/MUM./2015, DATED 24 TH APRIL 2017. 3 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE ASSESSING OFFICER HAS NOT INITIATED ANY PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THUS, HE SUBMITTED , THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT SUSTAINABLE . 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AGREED WITH THE AFO RESAID SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE. 5 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE FACTS ON RECORD THAT IN THE ORIGINAL ASSESSMENT ORDER, THE ASSESSING OFFICER MADE CERTAIN ADDITION S AND ALSO CHANGED THE HEAD OF INCOME IN RESPECT OF CERTAIN ITEMS OF INCOME WHICH RESULTED IN DETERMINATION OF TOTAL INCOME AT ` 5,97,05,484. ON THE B ASIS OF THE AFORESAID ADDITIONS/ DISALLOWANCE S THE ASSESSING OFFICER HAS INITIATED PROCEEDINGS FOR IMPOSITI ON OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY PASSED ORDER IMPOSING PENALTY 3 ANUSHAKTI CHEMICALS & DRUGS LTD. UNDER THE SAID PROVISIONS. THE IMPOSITION OF PENALTY WAS ALSO CONFIRMED BY THE LEARNED COMMISSIONER (APPEALS). HOWEVER, THE TRIBUNAL WHILE DECIDING THE QUANTUM AP PEAL OF THE ASSESSEE IN THE ORDER REFERRED TO ABOVE RESTORED ALL THE ISSUES TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION. IN THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL, THE ASSESSING OFFICER HAS ACCEPTED SOME OF THE CLAIM OF THE ASSESSEE AND DECIDED A COUPLE OF ISSUES AGAINST THE ASSESSEE. HOWEVER, AS COULD BE SEEN FROM THE FRESH ASSESSMENT ORDER, THE ASSESSING OFFICER HAD NOT INITIATED ANY PROCEEDING FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. BE THAT AS IT MAY, ONCE THE ADDITION S / DISALLOWANCE S ON THE BASIS OF WHICH PENALTY UNDER SECTION 271(1)(C) OF THE ACT LOST ITS EXISTENCE DUE TO THE ORDER PASSED BY THE TRIBUNAL IN QUANTUM APPEAL FILED BY THE ASSESSEE, PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANN OT SURVIVE. IN VIEW OF THE AFORESAID, WE ARE INCLINED TO DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. GROUNDS ARE ALLOWED. 6 . IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 29.05.2019 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 29.05.2019 4 ANUSHAKTI CHEMICALS & DRUGS LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI