ARUNA HANSRAJ GADA, MUMBAI V. ITO 20(1)(1), MUMBAI

ITA 2704/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7849 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 08-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Section: 27

Judgement Text

1 ITA NO.2704/MUM/2010 ASSESSMENT YEAR : 2003-04. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER. I.T.A. NO. 2704/MUM/2010 ASSESSMEN T YEAR : 2003-04. ARUNA HANSRAJ GADA, THE INCOME- TAX OFFICER, FLAT NO. 7, SHREYAS, VS. 20(1)(1), MUMBAI. J.P. ROAD, ANDHERI (W), MUMBAI 400 058. PAN AELPG6605C APPELLANT. RESPONDENT. APPELLAN T BY : SHRI VIJAY MEHTA. RESPONDEN T BY: SHRI JAGDISH. O R D E R PER J. SUDHAKAR REDDY, A.M. : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE CIT(APPEALS)-31, MUMBAI DATED 19-11-2009. 2. THERE IS A DELAY OF 36 DAYS IN FILING OF THE APP EAL. THE ASSESSEE FILED AN AFFIDAVIT EXPLAINING THE DELAY. AFTER PERUSING THE SAME, WE CONDONE THE DELAY. 3. THE APPEAL IS AGAINST THE LEVY OF PENALTY U/S 27 1(1)(C) OF THE INCOME-TAX ACT. SHRI VIJAY MEHTA, LEARNED COUNSEL FOR THE ASSE SSEE, FILED A COPY OF THE ORDER OF THE A-BENCH OF THE TRIBUNAL IN ITA NO. 1171/MUM/20 08, ORDER DATED 2 ND JULY, 2 ITA NO.2704/MUM/2010 ASSESSMENT YEAR : 2003-04. 2010 AND SUBMITTED THAT THE ISSUE WAS SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THUS HE SUBMIT TED THAT THIS PENALTY WILL HAVE TO BE QUASHED. 4. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE A SSESSEE HAD PAID UNDER PROTEST RS.9,500/- AS THE TRIBUNAL FEES, TO RECTIF Y THE DEFECT POINTED OUT BY THE REGISTRY. HE RELIED ON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF VINOD KHATRI VS. DCIT 82 TTJ 911 (DEL) (SB) AND THE JUDGMENT OF THE HONBLE PATNA HIGH COURT IN THE CASE OF DR. AJIT KUMAR PAN DEY VS. ITAT 310 ITR 195 AND SUBMITTED THAT THE TRIBUNAL FEE PAYABLE, WHEN THE C APTIONED APPEAL IS AGAINST THE LEVY OF PENALTY U/S 271(1)(C), IS ONLY RS.500/-. 5. SHRI JAGDISH, THE LEARNED DR, OPPOSED THE CONTEN TIONS. 6. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRC UMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORD, WE SET ASIDE THE I SSUE TO THE FILE OF THE AO, AS, IN THE QUANTUM PROCEEDINGS THE TRIBUNAL HAS SET ASIDE THE QUANTUM APPEAL TO THE FILE OF THE AO. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. 8. COMING TO THE REFUND OF TRIBUNAL FEES, THE HONB LE PATNA HIGH COURT IN THE CASE OF DR. AJIT KUMAR PANDEY (SUPRA) HAD HELD THAT UNDER CLAUSE (D) OF SECTION 253(6), THE AMOUNT PAYABLE ON AN APPEAL AGAINST LEV Y OF PENALTY IS ONLY RS.500/-. 3 ITA NO.2704/MUM/2010 ASSESSMENT YEAR : 2003-04. 9. RULE 4A(1)(XXI) OF THE APPELLATE TRIBUNAL RULES, 1963, READ AS FOLLOWS : (XXI) TO REFUND THE INSTITUTION FEE ON THE DIRECT ION OF THE BENCH. IN PURSUANCE THEREOF, WE DIRECT THE REGISTRY TO REF UND THE EXCESS INSTITUTION FEES OF RS.9500/- TO THE ASSESSEE. ORDERED ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH , 2011. SD/- SD/- (R.S.PADVEKAR) (J. SUD HAKAR REDDY) JUDICIAL MEMBER. ACCOUNT ANT MEMBER WAKODE MUMBAI, DATED: 30 TH MARCH, 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH (TRUE COPY) BY ORDER ASSTT. REGISTR AR, ITAT, MUMBAI.