ACIT - 5(2), MUMBAI V. M/s. NAHALCHAND LALOOCHAND P. LTD., MUMBAI

ITA 2722/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56292 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 09-04-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH CHAMARIA
• Assessee Lawyers: O A MAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER & SHRI VIJAY PAL RAO, JUDICIALMEMBER I.T.A.NO.2722/MUM/2009 A.Y 2004-05 SITI CABLE NETWORK LTD. (MERGED WITH DISH TV INDIA LTD.) FC-9. SECTOR 16A, NOIDA UP 201301 PAN: AABCS 8443B VS. ASST. COMMISSIONER OF I.T., RANGE 11(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJESH CHAMARIA. RESPONDENT BY : SHRI O. A. MAO. DATE OF HEARING: 19-12-2011. DATE OF PRONOUNCEMENT: 28-12-2011. O R D E R PER T.R.SOOD, AM: IN THIS APPEAL ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE ONLY DISPUTE INVOLVED IS REGARDING LEVY OF PENALTY AMOUN TING TO RS.2,49,90,210/- U/S.271(1). 2. AFTER HEARING BOTH THE PARTIES, WE FIND THAT PEN ALTY HAS BEEN LEVIED ON ACCOUNT OF TWO ADDITIONS, NAMELY, ADDITIO N ON ACCOUNT OF ADVANCES WRITTEN OFF AMOUNTING TO RS.5,09,64,244/- AND DISALLOWANCE OF BAND WIDTH CHARGES AMOUNTING TO RS.2,23,59,985/- . 3. BEFORE US LD. COUNSEL OF THE ASSESSEE FILED A CO PY OF THE TRIBUNALS ORDER IN QUANTUM APPEAL IN I.T.A.NOS.406 0 & 4533/M/07 AND POINTED OUT THAT BOTH THESE ISSUES HAVE BEEN SET AS IDE TO THE FILE OF THE AO AND, THEREFORE, PENALTY WOULD NOT SURVIVE. ITA NO.2722 OF 2009 2 4. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF THE CIT(A). 5. AFTER EXAMINING THE SUBMISSIONS, WE FIND THAT TH E ISSUE OF WRITING OFF OF ADVANCES HAS BEEN REMANDED TO THE FI LE OF THE AO BY THE TRIBUNAL VIDE PARA-6 OF THE QUANTUM APPEAL AND ISSU E REGARDING BAND WIDTH CHARGES HAS BEEN REMANDED VIDE PARA-7. THEREF ORE, PENALTY WILL NOT SURVIVE. ACCORDINGLY, WE DELETE THE PENALTY. AT THE SAME TIME AO IS AT LIBERTY TO INITIATE PENALTY PROCEEDINGS IF THE A DDITIONS ARE AGAIN MADE AND CIRCUMSTANCES WARRANT THE LEVY OF PENALTY. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8-12-2011. SD/- SD/- (VIJAY PAL RAO) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28/12/2011. P/-*