MAGSTIC PREMISES P.LTD, THANE V. DCIT CEN CIR 2, THANE

ITA 2036/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2600 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 2036 /MUM/2017 ASSESSMENT Y EAR: 2009 - 10 M/S MAJESTIC PREMISES PVT. LTD., 201, 2 ND FLOOR, OASIS SILVER STONE, RAM MARUTI ROAD, NEAR GAJANAN MAHARAJ TEMPLE, THANE - 400602 PAN: AAECM5625L VS. THE DCIT , CENTRAL CIRCLE 2, THANE (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANI JAIN (AR) REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH ( D R) DATE OF HEARING: 07 /08 /201 8 DATE OF PRONOUNCEMENT: 17 / 08 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25.01.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) (FO R SHORT THE CIT (A)) - 11 , PUNE , FOR THE A S S ESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING THE TOTAL INCOME OF RS. 1,71,466/ - . SCRUTINY ASSESSMENT, U/S 143 (3) OF THE ACT WAS COMPLETED AND THE TOTAL INCOME OF THE ASSESSEE WAS DECLARED AT RS. 1, 7 4 , 71,470/ - AFTER MAKING ADDITION OF RS. 1,73,00,000/ - U/S 69 OF THE ACT. IN THE FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. 2 ITA NO. 2 036 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 2(A). ACCORDINGLY, THE AO INITIATED THE INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND LEVIED PENALTY OF RS. 53,45,701/ - UNDER THE SAID SECTION. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE CIT(A). HOWEVER, T HE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) DESPITE SERVICE OF NOTICES ISSUED FROM TIME TO TIME. ULTIMATELY, THE LD. CIT( A) PASSED EXPARTE ORDER AND CONFIRMED THE PENALTY LEVIED BY THE AO. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND : - ON THE FACTS AND CIRCUMSTANCES OF THE APPE LLANTS CASE AND IN LAW THE LD. CIT (A) ERRED IN CONFIRMING THE A.O. ACTION IN IMPOSING PENALTY OF RS. 53,45,701/ - BY INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 4. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED BEFORE US THAT IN THE PRESENT CASE THE TRIBUNAL HAS RESTORED THE QUANTUM APPEAL TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATING THE APPEAL AFRESH AFTER HEARING THE ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE QUANTUM APPEAL HAS BEEN RESTOR ED TO THE LD. CIT(A), THE PENALTY DOES NOT SURVIVE. 5. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT CONTROVERT THE FACT THAT THE TRIBUNAL HAS SENT THE QUANTUM APPEAL BACK FOR FRESH ADJUDICATION ON MERITS AFTER HEARING THE ASSESSEE. 6 . WE HAVE PERUSED THE MATERIAL IN THE LIGHT OF THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. AS POINTED OUT BY THE LD. COUNSEL THE COORDINATE BENCH HAS SENT THE QUANTUM APPEAL BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATION. THE RELEVANT PORTION O F THE ORDER OF THE COORDINATE BENCH READS AS UNDER: - 3 ITA NO. 2 036 / MUM/2017 ASSESSMENT YEAR: 2009 - 10 WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSEE HAS BEEN ADJOURNMENT REPEATEDLY AND HENCE THE LD. CIT (A) HAS DECIDED THE ISSUE WITHOUT HEARING THE ASSESSEE. HOWEVER, IN THE IN TEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT (A). HOWEVER, SINCE THE ASSESSEE WAS SEEKING ADJOURNMENTS REPEATEDLY BEFORE LD. CIT (A), WE ARE OF THE VIEW THAT THE ASS ESSEE SHOULD BEAR A COST. ACCORDINGLY WE DIRECT THE ASSESSEE TO PAY A COST OF RS. 5,000/ - (RUPEES FIVE THOUSAND) WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER TO THE CREDIT OF INCOME TAX DEPARTMENT. SUBJECT TO THE PAYMENT OF THE COST CITED ABOVE, WE RESTORE ALL THE ISSUES TO THE FILE OF THE LD. CIT (A) FOR ADJUDICATING THEM AFRESH AFTER HEARING THE ASSESSEE. 7. SINCE, THE COORDINATE BENCH HAS RESTORED THE QUANTUM APPEAL TO THE LD. CIT(A) FOR ADJUDICATING THE SAME ON AFTER HEARING THE ASSES SEE, THE PRESENT APPEAL CANNOT BE DECIDED AT THIS STAGE. HENCE, WE DEEM IT NECESSARY TO RESTORE THE SAME TO THE LD. CIT(A) FOR PASSING NECESSARY ORDER AFTER DECIDING THE QUANTUM APPEAL. WE, THEREFORE, REMIT THE PENALTY APPEAL TO THE LD. CIT(A) FOR TAKING F URTHER NECESSARY ACTION AFTER DECIDING THE QUANTUM APPEAL. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2009 - 2010 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH . AUGUST , 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI ; DATED: 17 / 08 / 201 8 ALINDRA, PS 4 ITA NO. 2 036 / 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