ACIT 15(3), MUMBAI V. TIRUPATI CORPORATION, NAVI MUMBAI

ITA 3066/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0715 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUNSTIN
• Keywords: Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH , JM ITA NO. 306 6 / MUM/20 14 & 3067/MUM/2014 ( ASSESSMENT YEAR 2007 - 08 : ) ACIT 15(3), T.NO.122, MATRU MANDIR 1 ST FLOOR, TARDEO ROAD MUMBAI 400 007 VS. M/S. TIRUPATI CORPORATION 7, NEELKANTH PLAZA, PLOT NO.53, SECTOR 40, NERUL, NAVI MUMBAI 400 708 PAN/GIR NO. AAEFT1636R APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI V. JUNSTIN ASSESSEE BY SHRI NILESH JOSHI DATE OF HEAR ING 18 / 10 /201 7 DATE OF PRONOUNCEME NT 12 / 01 /201 8 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEAL S FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) 26, MUMBAI DATED 25/02/2014 FOR A.Y. 2007 - 08 IN THE MATTER OF ORDER PASSED U/ S.143(3) AND 271(1)(C) OF THE IT ACT. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN ITA NO.3066/MUM/2014 : - 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE ID. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO DETERMINE THE P ROFIT @8% ON W.I. P. EXCLUDING THE INTEREST TO THE PARTNERS, REMUNERATION TO PARTNERS AND COST OF LAND MERELY ON THE BASIS THAT SUCH A RATE WAS ACCEPTED BY THE ASSESSING OFFICER IN AN EARLIER ASSESSMENT YEAR, WITHOUT CONSIDERING THAT RES - JUDICATA DOES NOT APPLY TO THE INCOME TAX ITA NO. 3066/MUM/2014 & 3067/MUM/2014 M/S. TIRUPATI CORPORATION 2 PROCEEDINGS AND ALSO THAT THE FACTS IN THE IMPUGNED ASSESSMENT YEAR ARE DISTINCTLY DIFFERENT ,' 2. ' ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , TH E ID. CIT(A) HAS ERRED IN DIRECTING TO THE ASSESSING OFFICER TO BLINDLY F OLLOW THE RULE OF CONSISTENCY WITHOUT GOING INTO THE FACTS OF THIS ASSESSMENT YEAR WHICH IS NOT THE RATIO OF RELEVANT DIRECTION OF THE HON'B L E SUPREME COURT OF INDIA. 3. THE APPELLANT CRAVES LEAVE, ADD, AMEND, ALTER OR VARY ANY OF THE GROUNDS OF APPEA L AT THE TIME AND/OR BEFORE THE HEARING OF THE APPEAL. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN ITA NO.3067/MUM/2014: - 1 . ' ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , TH E ID. CIT(A) HAS ERRED IN DELETING THE PENALTY U/S.271(1 )(C) OF THE I.T. ACT 1961 WHEREIN THE DELETION OF QUANTUM ADDITION IS UNDER DISPUTE . 3. THE APPELLANT CRAVES LEAVE, ADD, AMEND, ALTER OR VARY ANY OF THE GROUNDS OF APPEAL AT THE TIME AND/OR BEFORE THE HEARING OF THE APPEAL. 3. RIVAL CONTENTIONS HAVE B EEN HEARD AND RECORD PERUSED. 4. FACTS IN BRIEF ARE THAT ASSESSEE IS A CONTRACTOR. DURING THE YEAR UNDER CONSIDERATION, THE AO ESTIMATED PROFIT AT 10%. AFTER GIVING DETAILED FINDING, THE CIT(A) DIRECTED FOR APPLYING PROFIT RATE AT 8%. CIT(A) HAS OBSERVED T HAT DEPARTMENT ITSELF HAS ACCEPTED PROFIT AT 8% WORK IN PROGRESS DURING THE IMMEDIATELY PRECEDING A.Y.2006 - 07. KEEPING IN VIEW THE NATURE OF ASSESSEES BUSINESS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR DIRECTING THE AO TO DETERMINE PROFIT AT 8% ON WORK IN PROGRESS. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.3067/MUM/2014 ITA NO. 3066/MUM/2014 & 3067/MUM/2014 M/S. TIRUPATI CORPORATION 3 6. THIS APPEAL IS FILED BY THE REVENUE FOR DELETING THE PENALTY IMPOSED BY THE AO WITH RESPECT TO THE ADDITION MADE ON ESTIMATED BASIS BY ESTIMATING PROFIT AT 10%. AS WE HAVE ALREADY CONFIRMED THE ORDER OF CIT(A) FOR DELETING THE ADDITION, THE PENALTY HAS NO LEGS TO STAND. 7. MOREOVER, WE FOUND THAT AO HAS LEVIED PENALTY ON THE ESTI MATED ADDITION SO MADE WHICH HAS BEEN DELETED BY CIT(A) BY OBSERVING THAT AO HAS ESTIMATED THE INCOME OF ASSESSEE AT 10 % OF THE PROFIT ON WORK IN PROGRESS AND SINCE, THERE IS NO CHANGE IN THE FACTS, APPLYING RULE OF CONSISTENCY AS PROPOUNDED BY HONBLE SUP REME COURT IN CASE OF RADHASOAMI SATSANG , H E DIRECTED THE AO TO DETERMINE PROFIT AT 8%, THUS, PENALTY IMPOSED ON THE BASIS OF ADDITION MADE BY AO ON ESTIMATED BASIS WAS DELETED BY CIT(A). IN VIEW OF THE FOLLOWING JUDICIAL PRONOUNCEMENTS, NO PENALTY IS LEVI ABLE ON THE ADDITION MADE ON ESTIMATED BASIS. A. C.IT.VS. SANGRUR VANASPATI MILL LTD. 303 ITR 53 (P & H) B. C.IT. VS. RAVAITSINGH&CO. 254ITR191(P&H) C. CIT VS. KRISHI TYRE RETREADING & RUBBER LND.[2014] 360 ITR 580 (RAJ.) D. DCIT VS. KALINDI RAIL NIRMAN EN GG. LTD. [2012J52 SOT 91 (DELHI) E. SUNIL KUMAR SINGHANIA VS. ACIT [2012] 52 SOT 137 (HYDERABAD) 8. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) FOR DELETING THE PENALTY SO IMPOSED. 9. IN THE RESULT, APPEAL S OF THE REVENUE ARE DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 12 / 01 /201 8 S D/ - ( PAWAN SINGH ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 12 / 01 /201 8 KARUNA SR. PS ITA NO. 3066/MUM/2014 & 3067/MUM/2014 M/S. TIRUPATI CORPORATION 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//