ASST CIT CIR 19(2), MUMBAI V. JOLLY APARTMENTS CO. OPERATIVE HSG SOCIETY LTD, MUMBAI

ITA 2599/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7672 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2002-2003
• Appeal Filed On: 05-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Section: 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI D.K.AGARWAL, JM ITA NO.2599/MUM/2011 : ASST. YEAR 2002-2003 THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 19(2) MUMBAI. M/S.JOLLY APARTMENTS CO-OPERATIVE HOUSING SOCIETY LIMITED PLOT NO.76, TPS-II, SARASWATI ROAD SANTACRUZ (WEST), MUMBAI 400 054. PAN : AAATA0868Q. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI JITENDRA YADAV RESPONDENT BY : --- NONE --- DATE OF HEARING : 30.01.2012 DATE OF PRONOUNCEMENT : 30.01.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 25.01.2011 DELETING THE PENALTY OF ` .59,58,434 IMPOSED BY THE ASSESSING OFFICER U/S 271 (1)(C) OF THE ACT, IN RELATION TO THE ASSESSMENT YEAR 2002-2003. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSING OFFICER OBSERVED IN THE CASE OF SHRI KESHAVJI K.KENIA THAT HE HAD DE CLARED CAPITAL GAIN ARISING OUT OF SALE OF TDR FSI TO ONE M/S.SARANG ESTATES PR IVATE LIMITED. ON THE PERUSAL OF THE RELEVANT SALE DEED IT WAS NOTICED TH AT ACTUALLY THE OWNER OF THE TDR FSI WAS THE ASSESSEE IN QUESTION AND NOT SHRI K ESHAVJI K.KENIA, WHO WAS ONLY A CONFIRMING PARTY. IT WAS STILL FURTHER NOTED THAT THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME U/S 139 FOR THE ASSESSMENT YEA R IN QUESTION AND THE TIME LIMIT FOR FILING THE RETURN WAS OVER. IN SUCH CIRCU MSTANCES NOTICE U/S 148 WAS ISSUED. REJECTING THE ASSESSEES CONTENTION, THE A. O. HELD THAT THE CAPITAL GAIN ARISING FROM TDR FSI WAS LIABLE TO BE ASSESSED IN T HE HANDS OF THE ASSESSEE. THE FIRST APPEAL FILED BY THE ASSESSEE WAS DISMISSE D. THEREAFTER, THE A.O. IMPOSED THE ABOVE MENTION PENALTY U/S 271(1)(C) OF THE ACT. WHEN THE ORDER IMPOSING PENALTY BY THE A.O. CAME UP FOR CONSIDERAT ION BEFORE THE LEARNED ITA NO.2599/MUM/2011 M/S.JOLLY APARTMENTS CO-OPERATIVE HO.SO.LTD. 2 CIT(A), HE OBSERVED THAT THE TRIBUNAL, IN QUANTUM P ROCEEDINGS, HAS DELETED THE ADDITION VIDE ITS ORDER DATED 16.12.2009 IN ITA NO. 1152/MUM/ 2008. IN THE LIGHT OF THE TRIBUNAL ORDER DELETING THE ADDITION, THE LEARNED CIT(A) CANCELLED THE PENALTY AS WELL. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF ASSESSEE, DESPITE NOTICE. IT IS OBSERVED THAT THE LD. CIT(A) HAS DELETED THE PENALTY IN VIEW OF THE FACT THAT THE VERY BASIS OF SUCH PENALTY, BE ING THE ADDITION MADE IN THE QUANTUM PROCEEDINGS, DOES NOT EXIST AS THE SAME HAS BEEN DELETED BY THE TRIBUNAL. THE LEARNED DEPARTMENTAL REPRESENTATIVE C OULD NOT SHOW THE REVERSAL OR THE MODIFICATION OF THE ORDER PASSED BY THE TRIB UNAL BY THE HONBLE HIGH COURT. IN VIEW OF THE FACT THAT THE QUANTUM ADDITIO N HAS BEEN FINALLY DELETED BY THE TRIBUNAL, IN OUR CONSIDERED OPINION, THERE REMA INS NO BASIS FOR CONFIRMING ANY PENALTY U/S 271(1)(C), WHICH IS IN EFFECT CONSE QUENTIAL TO THE QUANTUM ORDER. AS THE LEARNED CIT(A) HAS FOLLOWED THE ORDER PASSED BY THE TRIBUNAL IN QUANTUM PROCEEDINGS IN DELETING THE PENALTY U/S 271 (1)(C), WE DO NOT FIND ANY REASON TO DEVIATE FROM THE SAME. WE, THEREFORE, UPH OLD THE SAME. 4. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2012. SD/- SD/- (D.K.AGARWAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 30 TH JANUARY, 2012. DEVDAS* ITA NO.2599/MUM/2011 M/S.JOLLY APARTMENTS CO-OPERATIVE HO.SO.LTD. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-XXX, MUMBAI 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.