ITO 9(3)(4), MUMBAI V. GLOWSHINE BUILDERS & DEVELOPERS P.LTD, MUMBAI

ITA 3391/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0930 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3391 /MUM/2016 ASSESSMENT YEAR: 2009 - 10 THE ITO 9(3)(4), 471, AAYAKAR BHAVAN, 4 TH FLOOR, M.K. MARG, MUMBAI - 400020 VS . M/S GLOWSHINE BUILDERS & DEVELOPERS PVT. LTD., CTS 49 - 44, SAHARA INDIA POINT, S.V. ROAD, GOREGAON (WEST), MUMBAI 400104 PAN: AAACG3422F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAM TIWARI ( SR. D R) ASSESSEE BY : MS. PURVI GUPTA ( A R) DATE OF HEARING: 01/01 /201 8 DATE OF PRONOUNCEMENT: 01 / 01 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 29.02.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS - 16 , MUMBAI , FOR THE A S S ESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT (A) HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271 (1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT) AND DELETED THE PENALTY . 2. IN THIS CASE, THE APPELLANT COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10 DECLARING NIL INCOME AFTER CLAIMING BROUGHT FORWARD LOSS OF RS. 38,021/ - . HOWEVER, THE AO DETERMINED THE TOTAL INCOME AT RS. 15,93,68,479/ - BY MAKING ADDITI ON ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY AND ACCORDINGLY INITIATED PENALTY U/S 271 (1) (C) OF THE ACT FOR CONCEALMENT OF INCOME. AN ORDER U/S 271 (1)(C) OF THE ACT WAS 2 ITA NO. 3391 / MUM/2016 ASSESSM ENT YEAR: 2009 - 10 ACCORDINGLY PASSED IMPOSING PENALTY OF RS. 3,15,32,720/ - . THE ADDITION MADE BY AO WAS CONFIRMED BY THE CIT (A) IN THE FIRST APPEAL. HOWEVER, THE PENALTY W AS DELETED BY THE ITAT, MUMBAI VIDE ORDER DATED 14.04.2014. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE CIT (A). THE CIT (A) ALLOWED THE APPEAL AND DEL ETED THE PENALTY ON THE GROUND THAT IN QUANTUM APPEAL, THE ITAT HAS DELETED THE ADDITION SUSTAINED BY THE LD. CIT (A). THE REVENUE IS IN APPEAL AGAINST THE SAID ORDER BY RAISING THE FOLLOWING GROUND . WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE, THE LD. CIT (A) ERRED IN DELETING THE PENALTY LEVIED U/S 271 (1)(C) WHEREAS THE AO RIGHTLY TREATED THE SHORT TERM CAPITAL GAIN ON SALE OF DEVELOPMENT RIGHTS IN THE YEAR OF THE TRANSACTION?. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT SINCE THE TRIBUNAL HAS DELETED THE ADDITION IN QUA NTUM APPEAL ITA NO 478/MUM/2013 AND THE ORDER OF THE TRIBUNAL HAS BEEN AFFIRMED BY THE HONBLE HIGH COURT OF BOMBAY IN ITA NO 1756 OF , THE PENALTY ORDER DOES NOT SURVIVE. THEREFORE, THE APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) DID NOT CONTROVERT THE FACTS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE . 5. WE HAVE CAREFULLY PERUSED THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS THE ORDER PASSED BY THE CO - ORDINATE BENCH AND THE ORDER OF THE HONBLE HIGH COURT. THE COORDINATE BENCH OF THE TRIBUNAL HAS DELETED THE ADDITION SUSTAINED BY THE CIT (A) IN ITA NO. 478/MUM/2013 VIDE ORDER DATED 11.04.2014. THE APPEAL AGAINST THE FINDINGS OF THE COO RDINATE BENCH AFORESAID HAS BEEN AFFIRMED BY THE HONBLE HIGH COURT OF BOMBAY IN INCOME TAX APPEAL NO. 1756 OF 2014 DATED 09.04.2017. UNDER THESE CIRCUMSTANCES, THE IMPUGNED PENALTY ORDER DOES NOT SURVIVE IN THIS CASE. WE ACCORDINGLY UPHOLD THE FINDINGS OF THE LD. CIT(A) AND DISMISS THE SOLE GROUND OF APPEAL OF THE REVENUE . 3 ITA NO. 3391 / MUM/2016 ASSESSM ENT YEAR: 2009 - 10 IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2009 - 20 10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST . JANUARY, 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 01 / 01 / 2018 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI