R. P. INFRASTRUCTURE PVT. LTD., MUMBAI V. DY. CIT - 9(3), MUMBAI

ITA 2894/MUM/2013

• Counselvise Citation: 289419914 RSA 2013
• Duration Of Justice: 2 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: RAHUL K HAKANI; DR K SHIVARAM
• Section: 115JB; 154

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ./ I.T.A. NO. 2894 /MUM/2013 ( / ASSESSMENT YEAR : 2008-09 R.P. INFRASTRUCTURE PVT. LTD., C-116, MAYUR APARTMENT, SODAWALA CROSS LANE, BORIVALI (W), MUMBAI 400 092. / VS. DY. C.I.T. 9(3), 2 ND FLOOR, AAYAKAR BHAVAN, MUMBAI-400 020. ./ PAN : AACCR 5405P ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY DR. K. SHIVARAM & SHRI RAHUL K. HAKANI R E SPONDENT BY : SHRI LOVE KUMAR (D.R.) / DATE OF HEARING : 26-05-2015 / DATE OF PRONOUNCEMENT : 10-06-2015 [ !' / O R D E R PER R.C. SHARMA, A.M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) -20, MUMBAI DATED 13-02-20 13 FOR THE A.Y. 2008-09 IN THE MATTER OF PENALTY IMPOSED U/S 271(1)(C) OF T HE INCOME TAX ACT, 1961. 2. DURING THE COURSE OF HEARING BEFORE US, THE ASS ESSEE FILED ADDITIONAL GROUND TO THE EFFECT THAT PENALTY U/S. 271(L)(C) CA NNOT BE LEVIED ON ADDITIONS OR DISALLOWANCES MADE WHILE COMPUTING INCOME UNDER NORMAL PROVISIONS WHEN THE TAX IS PAYABLE ON INCOME ASSESSED U/S. 115 JB. IN THE FACTS OF THE PRESENT CASE TAX IS PAYABLE ON INCOME U/S. 115JB IN VIEW OF THE ORDER PASSED U/S. 154 DATED 26/04/2012. HENCE, NO PENALTY CAN BE LEVIED U/S. 271(1)(C). ITA 2894/M/13 2 IN SUPPORT OF THE CONTENTION, THE LD. COUNSEL FOR T HE ASSESSEE PLACED RELIANCE ON THE APEX COURT DECISION IN THE CASE OF CIT VS, N ALWA SONS INVESTMENTS LTD. SLP (CIVIL) NO. 18564 OF 2011 DT. 4/5/2012 WHEREIN SLP FILED AGAINST THE DECISION OF THE DELHI HIGH COURT REPORTED IN (2010) 327 ITR 543 WAS DISMISSED. 3. WE HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND FOUND THAT THE LD. CIT(A) HAS CONFIRMED THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT ON THE PLEA THAT THERE WAS DELIBERATE WRONG CLA IM OF BROUGHT FORWARD LOSSES AND LOSS ON SALE OF CRUSHING MACHINE. HOWEV ER, IN PARA 3.1 OF HIS ORDER, THE LD. CIT(A) OBSERVED THAT APPEAL WAS TIME BARRED BUT NO CLARIFICATION FROM THE ASSESSEE WITH REGARD TO DELAY IN FILING TH E APPEAL WAS FILED. FROM THE ORDER OF THE LOWER AUTHORITIES, WE FOUND THAT THE L D. CIT(A) HAS NOT CONSIDERED THE IMPOSITION OF PENALTY IN CASE THE INCOME IS ASS ESSABLE U/S 115JB OF THE ACT. 4. IN THE INTEREST OF JUSTICE, WE RESTORE THIS APP EAL BACK TO THE FILE OF LD. CIT(A) FOR FIRST DECIDING THE ISSUE REGARDING DELAY IN FILING THE APPEAL BEFORE HIM AND TO CONSIDER THE ADDITIONAL GROUND RAISED BY THE ASSESSEE TO THE EFFECT THAT ON THE INCOME ASSESSED U/S 115JB OF THE ACT, N O PENALTY IS IMPOSABLE U/S 271(1)(C) OF THE ACT ON THE ADDITION/DISALLOWAN CE SO MADE BY THE A.O. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D IN PART FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JUNE, 2015. !' # $% &! ' 10-06-2015. ( ) SD/- SD/- (D. MANMOHAN) (R.C. SHARMA) VICE PRESIDENT ACCOUNTANT MEMBER $ 4 MUMBAI ; &! DATED 10-06-2015 ITA 2894/M/13 3 .5../ RK RKRK RK , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 6 () / THE CIT(A) 20, MUMBAI 4. 6 / CIT --9, MUMBAI 5. 9:( 55;< , ;< , $ 4 / DR, ITAT, MUMBAI D BENCH 6. (>? @ / GUARD FILE. ' / BY ORDER, 9 5 //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 4 / ITAT, MUMBAI