K. BHATIA CORPORATION, MUMBAI V. DCIT CIR 23(2), MUMBAI

ITA 2470/MUM/2015

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5629 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M NAVEEN
• Keywords: Set aside
• Section: 271(1)(c); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE S HRI B.R. BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 2470/MUM/2015 ASSESSMENT Y EAR: 2006 - 07 M/S K BHATIA CORPORATION, FLAT NO. 1, MAY QUEEN APARTMENT, 33 RD ROAD, BANDRA (W), MU MBAI - 50 PAN: AAEFK9626Q VS. THE DCIT , CIRCLE 2 3(2), PIRAMAL CHAMBERS, 3 RD FLOOR, LALBAUG, PAREL, MUMBAI - 400013 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AKASH KUMAR (AR) REVENUE BY : SHRI M. NAVEEN ( D R) DAT E OF HEARING: 27 /08 /201 8 DATE OF PRONOUNCEMENT: 20 / 11 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03.02.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ( FOR SHORT THE CIT (A)) - 32 , MUMBAI , FOR THE A S S ESSMENT YEAR 2006 - 07 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT) AND CONFIRMED THE PENA LTY LEVIED BY THE AO . 2. AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND S : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAVE ERRED IN CONFIRMING THE PENALTY OF RS. 35,67,960/ - UNDER SECTION 271 (1)(C) FOR A.Y. 2006 - 2007 WITHOUT COGENT REASONS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN 2 ITA NO. 2470 / MUM/2015 ASSESSMENT YEAR: 2006 - 07 CONFIRMING TH E PENALTY OF RS. 35,67,960/ - UNDER SECTION 271 (1) (C) FOR A.Y. 2006 - 2007 IN SPITE OF THE FACT THAT THE QUANTUM ADDITION IS STILL PENDING WITH ITAT IN RESPECT OF ADDITION OF RS. 90,00,000/ - PAYABLE TO BMC AND ADDITION OF RS. 16,00,000/ - BEING ADVANCE RECEI VED FROM MRS. PAREKH. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITION CONFIRMED BY THE LD. CIT(A) IN QUANTUM APPEAL. SINCE, THE ADDITION ON THE BASIS OF WHICH PENALTY ORDER HAS BEEN PASSED AND THE FURTHER CONFIRMED BY THE FIRST APPELLATE AUTHORITY, THE IMPUGNED ORDER IS LIABLE SET ASIDE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT CONTROVERT THE AFORESAID FACTS RATHER ADMITTED THAT THE ADDITION HAS BEEN DELETED BY THE ITAT. 5. WE HAVE PERUSED T HE RELEVANT MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. THE COORDINATE BENCH OF THE TRIBUNAL HAS DELETED THE ADDITION IN THE ASSESSEES APPEAL ITA NO. 673/MUM/2012 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION VIDE ORDER DATED 08.06.18. WE NOTICE THAT THE ASSESSEES QUANTUM APPEAL WAS PENDING BEFORE THE LD CIT(A) WHEN THE IMPUGNED ORDER WAS PASSED. WE FURTHER NOTICE THAT THE LD CIT(A) HAD CONFIRMED ADDITION OF RS. 90,00,000/ - MADE BY THE AO REJECTING THE CLAIM O F THE ASSESSEE THAT THE SAID AMOUNT IS PAYABLE TO BMC TOWARDS PREMIUM. THE LD. CIT(A) HAD ALSO CONFIRMED THE ADDITION OF RS. 16,00,000/ - MADE BY THE AO BEING ADVANCE RECEIVED FROM MRS. PAREKH IN SPITE OF THE FACT THAT THE SAME WAS RECEIVED DURING THE ASSESS MENT YEAR 2004 - 05. 6. IN VIEW OF THE FACT THAT, THE COORDINATE BENCH HAS DELETED BOTH THE ADDITIONS, ON THE BASIS OF WHICH THE LD. CIT(A) CONFIRMED THE PENALTY OF RS. 35,67,960/ - U/S 271(1)(C) OF THE ACT, THE IMPUGNED ORDER DOES NOT SURVIVE. 3 ITA NO. 2470 / MUM/2015 ASSESSMENT YEAR: 2006 - 07 HENCE, WE DIS MISS THE IMPUGNED ORDER WHICH HAS BECOME INFRUCTUOUS AND DIRECT THE AO TO DELETE THE PENALTY. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2006 - 2007 IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER , 2018 . SD/ - SD/ - ( B.R. BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 20 / 11 / 201 8 ALINDRA, 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 . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI