EVERSMILE CONSTRUCTION CO. P.LTD, MUMBAI V. DCIT CEN CIR 5, MUMBAI

ITA 2331/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2281 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 07-04-2014
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER I.T.A. NO.2331/M/2014 (ASSESSMENT YEAR: 2003 - 2004 ) EVERSMILE CONSTRUCTION CO. PVT LTD., DB HOUSE, YASHODHAM, GEN. A.K. VAIDYA MARG, GOREGAON (E), MUMBAI 400 063. / VS. THE DCIT, CENTRAL CIRCLE - 6, MUMBAI. ./ PAN :AAACE0875E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : MS. AARTI VISSANJI / RESPONDENT BY : SHRI A.K. KARDAM / DATE OF HEARING : 26.10.2016 / DATE OF PRONOUNCEMENT : 26.10.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 7.4.2014 IS AGAINST THE ORDER OF THE CIT (A) - 36, MUMBAI DATED 10.2.2014 FOR THE ASSESSMENT YEAR 2003 - 2004. IN THIS APPEAL, THE ONLY ISSUE INVOLVED IS THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND MENTIONED THAT IN THE REGULAR ASSESSMENT, AO MADE ADDITION OF RS. 1.7 CRS VIDE PARA 7 OF THE ASSESSMENT ORDER AND THIS ISSUE WAS EVENTUALLY RESTORED TO THE FILE OF THE AO VIDE PARA 7 OF THE ORDER OF THE T RIBUNAL IN ITA NO.6951/M/2011 (2003 - 2004), DATED 5.7.2016 AND THE APPEAL WAS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES . IN THIS REGARD, HE READ OUT THE RELEVANT LINES FROM THE SAID PARA 7 OF THE TRIBUNALS ORDER (SUPRA) AND THE SAME READ AS UNDER: - 7............T HEREFORE, THE ORDER PASSED BY THE CIT (A) IS WRONG AGAINST LAW AND FACTS AND IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE ORDER PASSED BY THE CIT (A) IN QUESTION AND RESTORE THE FILE BEFORE THE AO TO PROVI DE AN OPPORTUNITY TO CROSS EXAMINE SHRI ASHOK H. PAMANI AND PASS THE FRESH ORDER IN ACCORDANCE WITH LAW. 2 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. 3. LD COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT CON SIDERING THE FATE OF THE ADDITIONS ON THE MERITS, THE GROUNDS RAISED BY THE ASSESSEE BECOMES ALLOWABLE IN FAVOUR OF THE ASSESSEE. 4. ON HEARING BOTH THE PARTIES, WE FIND THE ADDITIONS MADE BY THE AO ARE NOT IN EXISTENCE AND THE DEMAND STANDS DELETED. IN SUCH CASE, NO PENALTY LEVIED BY THE AO EXISTS. CONSEQUENTLY, THE GROUNDS RAISED BY THE ASSESSEE HAVE TO BE ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. AO IS FREE TO INITIATE FRESH PENALTY PROCEEDINGS, IF ANY, AS PER LAW. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER, 2016. S D / - S D / - ( AMARJIT SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 26 .10.2016 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI