ALLIANCE HOTELS, MUMBAI V. DCIT 12(1), MUMBAI

ITA 2285/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8684 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: RAMAWATAR MANDHANIA
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BE F ORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER I TA NO. 2285 / MUM /20 17, A.Y. 2009 - 10 M/S. ALLIANCE HOTELS 121, CITY TERRACE, W.H. MARG, FORT, MUMBAI 400 001. PAN: AAFFA 7075E ...... APPELLANT VS. DY. COMMISSIONER OF INCOME TAX - 12(1), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020 ...... RESPONDENT APPELLANT BY : SHRI RAMAWATAR MANDHANIA RESPONDENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 11/10/2017 DATE OF PRONOUNCEMENT : 25 /10/2017 O RDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 28 , MUMBAI DATED 11.01.2017 , PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE DCIT, CIRCLE - 12(1), MUMBAI DATED 29.03.2014 UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2 M/S. ALLIANCE HOTELS ITA NO. 2285/MUM/2017 2. IN BRIEF, THE RELEVANT FACTS ARE TH AT THE ASSESSING OFFICER IN THE ASSESSMENT FINALISED U/S 143(3) OF THE ACT ON 20.12.2011 HAS DISALLOWED EXPENDITURE ON THE FOLLOWING TWO COUNTS (I) DEPRECIATION NOT SUPPORTED BY BILLS AND VOUCHERS RS.69,13,144/ - AND (II) INTEREST ON BANK LOAN NOT USED FO R ACQUISITION OF FIXED ASSETS RS.1,08,04,969/ - AND HA D INITIATED SEPARATE LY THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. NOT BEING SATISFIED WITH THE EXPLANATION SUBMITTED BY THE ASSESSEE TO THE SHOW CAUSE NOTICE DATED 28.02.2014, THE ASSESSING OFF ICER LEVIED PENALTY OF RS.60,22,390/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED ON THE ABOVE TWO ASPECTS. EVEN THE CIT(A) HAS AFFIRMED THE LEVY OF PENALTY. AGAINST SUCH A DECISION OF THE CIT(A), ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEES APPEAL AGAINST THE DISALLOWANCE OF EXPENDITURE IN THE QUANTUM PROCEEDINGS HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL VIDE ITS ORDER IN ITA NO. 5111/MUM/2012 DATED 08.11.2016. FURTHER, IT HAS ALSO BEEN SUBMITTED THE ASSESSING OFFICER HAS AN PASSED ORDER DATED 27.02.2017 GIVING EFFECT TO THE TRIBUNALS ORDER, THEREFORE, THE ADDITIONS ON THE BASIS OF WHICH THE PENALTY HAS BEEN LEVIED U/S 271(1)(C) DO NOT SURVIVE. 4. THE LD. DR DID NOT OPPOSE THE FACTUAL MATRIX BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THE DISALLOWANCES ON THE BASIS OF WHICH THE PENALTY PROCEEDINGS WERE INITIATED HAVE BEEN DELETED BY THE T RIBUNAL VIDE ITS ORDER IN ITA NO. 3 M/S. ALLIANCE HOTELS ITA NO. 2285/MUM/2017 5111/MUM/2012 DATED 08.11.2016. THEREFORE, THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT DOES NOT SURVIVE AND IS HEREBY DELETED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 T H OCTOBER, 2017. SD/ - SD/ - ( SAKTIJIT DEY ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 2 5 T H OCTOBER , 201 7 VM, SR. P.S COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ ASSTT. REGISTRAR I.T.A.T, MUMBAI