KARAKAL VARKY VARGHESE, Mumbai V. Income Tax Office 30(2)(1), Bandra Kurla Complex

ITA 2417/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6313 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-10-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI SHRI B.R. BASKARAN, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER ITA No. 2417/MUM/2023 (Assessment Year: 2009-10) Karakal Varky Varghese, Shed No. 5, Patherwadi Road, Near Vishwakarma Garden, Marve Road, Malad (West), Mumbai – 400095 [PAN : AAAPV7565R] ............... Appellant Income Tax Officer, Ward - 30(2)(1), Mumbai, BKC, Mumbai Vs ................ Respondent Appearance For the Appellant/Assessee For the Respondent/Department : : Shri Vimal Punmiya Shri P.D. Chogule Date Conclusion of hearing Pronouncement of order : : 16.10.2023 19.10.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. By way of the present appeal the Appellant has challenged the order, dated 31/03/2023, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘the CIT(A)’] for the Assessment Year 2009-10, whereby the Ld. CIT(A) had dismissed the appeal of the Assessee against the Penalty Order dated 28/03/2016, passed under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) levying the penalty of INR 6,76,575/-. 2. The Appellant has raised the following grounds of appeal: ITA No.2417/Mum/2023 (Assessment Year: 2009-10) 2 "1. On the facts and circumstances of the case and law the learned CIT(A) erred in confirming penalty under Section 271(1)(c) of the Income Tax Act, 1961.” 3. When the appeal was taken up for hearing, the Ld. counsel for the Assessee, at the outset, invited our attention to page No. 109 to 123 of the paper-book and submitted that the appeal preferred by the Assessee against the penalty order dated 28/03/2016, levying penalty of INR 6,76,575/- was allowed by the Commissioner of Income Tax (Appeals) - 41, Mumbai vide order, dated 31/11/2018. Therefore, the subsequent order, dated 31/05/2023, passed by the CIT(A) dismissing the same appeal of the Assessee is liable to be set aside. 4. On perusal of the common order, dated 31/11/2018, passed by the Commissioner of Income Tax (Appeals)-41, Mumbai disposing appeal No. CIT(A)-41/IT-48/16-17 pertaining to Assessment Year 2009-10 and CIT(A)-41/IT-50/16-17 pertaining to Assessment Year 2010-11, we find that the appeal preferred by the Assessee against the penalty order, dated 28/03/2016, pertaining to Assessment Year 2009-10 has been allowed in favour of the Assessee. 5. Further, on examining the order impugned by way of present appeal, we find that the CIT(A) has made reference to the same appeal preferred by the Assessee against the penalty order, dated 28/03/2016, in the first paragraph of the order impugned which reads as under: “This appeal is preferred against the order dated 28.03.2016 passed U/s 271(1)(c) of I.T. Act, 1961 by the ITO, Ward-30(2)(1), Mumbai, for the A.Y. 2009-10. The appeal in this case has been filed on 22.04.2016, after service notice of demand dated 01.04.2016 as mentioned in form no. 35. Notices U/s 250 of the I.T. Act, 1961 were ITA No.2417/Mum/2023 (Assessment Year: 2009-10) 3 issued to the appellant on 02.02.2021 and 24.04.2023.” 6. Thus, the common order, dated 31/11/2018, passed by the Commissioner of Income Tax (Appeals)-41, Mumbai as well as the subsequent order, dated 31/05/2023, passed by the CIT(A) dispose of the appeal preferred by the Assessee against the penalty order dated 28/03/2016 passed under Section 271(1)(c) of the Act for the Assessment Year 2009-10. 7. Since the appeal filed by the Assessee against the penalty, order dated 28/03/2016, pertaining to Assessment Year 2009-10 was already allowed by the Commissioner of Income Tax (Appeals)-41, Mumbai vide the common order, dated 31/11/2018, the subsequent order dated 31/05/2023 passed by CIT(A) is nullity in the eyes of law and is, therefore, quashed. 8. In result, the present appeal preferred by the Assessee is allowed. Order pronounced on 19.10.2023. Sd/- Sd/- (B.R. Baskaran) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 19.10.2023 Alindra, PS ITA No.2417/Mum/2023 (Assessment Year: 2009-10) 4 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त/ The CIT 4. प्रध न आयकर आय क्त / Pr.CIT 5. दिभ गीय प्रदिदनदध, आयकर अपीलीय अदधकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदधकरण, म ुंबई / ITAT, Mumbai