ITO 24(1(4), MUMBAI V. EAGLE IMPEX, MUMBAI

ITA 2869/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55121 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 23-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 12-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J BEFORE SHRI D. MANMOHAN (VP) & SHRI P.M. JAGTAP (AM ) I.T.A.NO. 2869/MUM/2010 (ASSESSMENT YEAR : 2003-04) ITO 24(1)(4) BUILDING NO. C-13, 5 TH FLOOR, PRATYAKSHAKAR BHAVAN BKC, BANDRA EAST MUMBAI-400 051. VS. M/S. EAGLE IMPLEX FLAT NO. 401 MADHUBAN BUILDING JITENDRA CROSS ROAD NEAR PAREKH HALL MALAD EAST, MUMBAI-97. PAN/GIR NO. : AAAFE4976B ASSESSEE BY : SHRI DHIREN P. TALATI DEPARTMENT BY : SHRI P.K.B. MENON DATE OF HEARING : 28.3.2011 DATE OF PRONOUNCEMENT : 28.3.2011 ORDER PER D. MANMOHAN (VP) :- PENALTY LEVIED U/S. 271(1)(C) OF THE ACT HAVING BEEN CANCELLED BY LEARNED CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 2. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AS WELL AS LEARNED COUNSEL FOR THE ASSESSEE IN THIS REGARD AND CAREFULLY PERUSED THE RECORD. ADMITTEDLY ASSESSMENT MADE BY THE ASSESSIN G OFFICER, ON THE BASIS OF WHICH PENALTY WAS LEVIED, WAS SET ASIDE BY THE ITAT, MUMBAI BENCHES WITH THE DIRECTION TO DECIDE THE ISSUE AFRE SH. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSING OFFICER HAS PASSED A FRE SH ASSESSMENT ORDER AND SIMULTANEOUSLY ISSUED A FRESH PENALTY NOTICE. I N THE LIGHT OF THE FACT THAT A FRESH NOTICE WAS ISSUED, LEARNED CIT(A) OBSE RVED THAT THE PENALTY PROCEEDINGS BASED ON THE ORIGINAL ASSESSMENT ORDER BECOMES INFRUCTUOUS. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FRESH PENALTY PROCEEDINGS HAVING BEEN INITIATED THE ASSESSING OFF ICER IS FREE TO PROCEED WITH SUCH NOTICE IF HE IS ABLE TO ESTABLISH THAT IT IS A FIT CASE FOR LEVY OF PENALTY. HAVING REGARD TO THE CIRCUMSTANCES WE DO N OT FIND ANY M/S. EAGLE IMPLEX 2 INFIRMITY IN THE ORDER PASSED BY LEARNED CIT(A) AND WE THEREFORE DISMISS THE APPEAL FILED BY THE REVENUE. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON THE DA TE OF HEARING I.E. ON 23.8.2011. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE-PRESIDENT DATED : 23 RD AUGUST, 2011. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS