ITO 9(3)3, MUMBAI V. VELENTINE PROPERTIES P.LTD, MUMBAI

ITA 2310/MUM/2013

• Counselvise Citation: 231019914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2014
• Appeal Filed By: Department
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2013
• Court: TRIBUNAL
• Department Lawyers: K N PRADEEP SHAURYA ARYA
• Assessee Lawyers: RAJESH B GUPTE

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , !'# !$%&' , %! () BEFORE S/SH.D.MANMOHAN, VICE-PRESIDEN T & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.2310/MUM/2013, ! ! ! ! * * * * / ASSESSMENT YEAR-2007-08 ITO 9(3)-(3), 2 ND FLOOR, ROOM NO. 227, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 V/S. M/S. VALENTINE PROPERTIES PVT. LTD. LALANI AURA, BEHIND NATIONAL COLLEGE, BANDRA (W), MUMBAI-400050 PAN: AAACV0176H ( !+, / APPELLANT) ( -.+, / RESPONDENT) !$) / 0 % / REVENUE BY : SHRI K. N. PRADEEP SHAURYA ARYA !12 !12 !12 !12 0 0 0 0 % %% % / ASSESSEE BY : SHRI RAJESH B. GUPTE ! ! ! ! / // / 2! 2! 2! 2! / DATE OF HEARING : 25-06-2014 3* ! / 2! / DATE OF PRONOUNCEMENT : 25-06-2014 , 1961 / // / !! !! !! !! 254 )1( % %% % &242 &242 &242 &242 (%5 (%5 (%5 (%5 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM %! %! %! %! () () () () !$%&' !$%&' !$%&' !$%&' % %% % ! ! ! ! : CHALLENGING THE ORDER DT. 24.01.2013 OF THE CIT(A)- 20,MUMBAI, ASSESSING OFFICER (AO)HAS RAISED FOLLOWING GROUNDS OF APPEAL : 1.THE LD.CIT(A) ERRED IN QUASHING THE PENALTY ON T HE GROUNDS THAT THE APPELLANT WAS NOT LIABLE FOR ANY PENALTY AS QUANTUM ADDITION HAD BEEN DELETE D WITHOUT APPRECIATING THE FACTS THAT THE DEPARTMENT HAS NOT ACCEPTED THE APPELLATE ORDER OF THE CIT(A) DELETING THE QUANTUM ADDITION. 2.THE LD.CIT(A) ERRED IN DELETING THE PENALTY WITHO UT APPRECIATING THE FACTS THAT THE PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS AND IF SECO ND APPEAL IS PENDING BEFORE THE HONBLE ITAT THERE IN NO BAR ON THE ASSESSING OFFICER IN LE VYING PENALTY U/S271(1)(C) OF THE INCOME-TAX ACT,1961. 3.THE LD.CIT(A) ERRED IN DELETING THE PENALTY WITHO UT APPRECIATING THE FACTS OF THE CASE. 4.THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. THIS APPEAL IS AGAINST THE DELETION OF PENALTY-ORDE R BY THE FIRST APPELLATE AUTHORITY(FAA).IN THIS CASE BASIC ADDITION;RELATING TO DENIAL OF DEDU CTION U/S.80IB OF THE ACT CLAIMED IN RESPECT OF INCOME FROM CAR PARKING AREA AND GODOWN SPACE IN PR OJECT A-2;WAS MADE BY THE AO WHILE PASSING ORDER U/S.143(3) OF THE ACT.IN THE APPELLAT E PROCEEDINGS,FAA DIRECTED THE AO TO RECOM - PUTE THE DEDUCTION U/S.80IB WITHOUT EXCLUDING INCOM E FROM CAR PARKING AREA AND GODOWN SPACE. INSPITE OF DELETION OF ADDITION OR ALLOWANCE OF CLA IM OF THE ASSESSEE BY THE FAA, THE AO LEVIED PENALTY ON THE ASSESSEE U/S.271(1)(C) OF THE ACT,ON THE GROUND THAT DEPARTMENT HAD FILED APPEAL BEFORE THE ITAT AND SAME WAS TO BE DISPOSED OFF. 3. AGGRIEVED BY THE PENALTY ORDER OF THE AO,THE ASSESS EE PREFERRED AN APPEAL BEFORE THE FAA.AFTER 2 ITA NO. 2310/MUM/2013 M/S. VELENTINE PROPERTIES PVT . LTD . CONSIDERING THE FACTS OF THE MATTER HE HELD THAT TH E AO HAD LEVIED THE REFERRING TO VARIOUS CASE LAWS IN A CYCLOSTYLE MANNER WITHOUT POINTING OUT AS TO HOW THOSE CASE LAWS ARE RELEVANT TO THE CORE ISSUE PRESUMED TO BE LIABLE FOR PENALTY,THAT T HE ADDITIONS MADE BY THE AO HAD BEEN DELETED BY THE FAA,THAT THERE WAS NO PROPRIETY FOR LEVY OF PENALTY,THAT THE AO HAD NOT APPLIED HIS MIND OR HAD NOT UNDERSTOOD THE PROPER PROCEDURE, APPLICA BILITY OF LAW,THAT THE AO HAD ALSO FAILED TO UNDERSTAND THE REQUIREMENT OF LEVY OF PENALTY U/S 2 71(1)(C ),THAT HE HAD SHOWN TOTAL DISRESPECT TO THE ORDER OF THE FAA AND HAD LEVIED PENALTY MINDLES SLY. CONSIDERING THE FACTS AND BACKGROUND OF THE CASE,HE QUASHED THE PENALTY ORDER OF THE AO AND ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4. BEFORE US,DEPARTMENTAL REPRESENTATIVE (DR)STATED TH AT MATTER COULD BE DECIDED ON MERITS.AUTH ORISED REPRESENTATIVE (AR)STATED THAT THE TRIBUNAL HAD RESTORED BACK THE MATTER TO THE FILE OF THE FAA WHILE DECIDING THE APPEAL FILED BY THE AO,THAT THERE WAS NO JUSTIFICATION IN LEVYING CONCEALMENT PENALTY. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE DECIDING THE QUANTUM APPEAL,WE HAD ,VIDE OUR ORDER DATED 08.08.2012(ITA/6297/MUM/2010) RESTORED BACK THE MATTER TO THE FILE OF THE FAA FOR RECONSIDERING THE MATTER AS PER LAW.IN THESE CIRCUMSTANCES,NO PENALTY ORDER CAN SURVIVE FOR THE ADDITION MADE BY THE AO,U/S.80IB OF THE ACT. AS THE FAA HAD TO DECIDE THE QUANTUM APPEAL AFRESH, SO,HE IS ALSO DIRECTED TO ADJUDICATE THE ISSUE OF LEVYING OF PENALTY U/S.271(1)(C)OF THE ACT.THUS, IN THE INTEREST OF JUSTICE,ISSUE OF LEVYING OR NOT LEVYING OF PENALTY IS RESTORED BACK TO HIS FILE,SO THAT HE CAN TAKE AN INFORMED DECISION AT APPROPRIATE TIME.PARTLY CONFIRMING THE ORDER OF THE FAA,WE ALLOW THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE,IN PART. AS A RESULT, APPEAL F ILED BY THE ASSESSEE STANDS PARTLY ALLOWED. 26 !12 26 !12 26 !12 26 !12 8!! (!9 / 4 8!! (!9 / 4 8!! (!9 / 4 8!! (!9 / 4 526 526 526 526 $: / $!2 ; $: / $!2 ; $: / $!2 ; $: / $!2 ;. .. . ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE, 2014 . (%5 (%5 (%5 (%5 / // / 3* ! 3* ! 3* ! 3* ! % % % % &!! &!! &!! &!! = == = >(! >(! >(! >(! 25 $: $:$: $: , 201 4 / // / 4 44 4 ? ?? ? SD/- SD/- ( . / D.MANMOHAN) ( !$%&' !$%&' !$%&' !$%&' / RAJENDRA) !'# / VICE PRESIDENT %! %! %! %! () () () () /ACCOUNTANT MEMBER / MUMBAI, >(! /DATE: 25.06.2014. SK (%5 (%5 (%5 (%5 / // / -2@ -2@ -2@ -2@ A%@*2 A%@*2 A%@*2 A%@*2 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / !+, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ B C , 4. THE CONCERNED CIT / B C 5. DR F BENCH, ITAT, MUMBAI / @D!4 -2 , . . &!! . 6. GUARD FILE/ 4! ! .!@2 .!@2 .!@2 .!@2 -2 -2-2 -2 //TRUE COPY// (%5!! / BY ORDER, / ! $! DY./ASST. REGISTRAR , /ITAT, MUMBAI