THE ITO 9(2)(4), MUMBAI V. M/S. PELICAN SYNTEX PVT. LTD, MUMBAI

ITA 3482/MUM/2007

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0620 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 30-04-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 07-05-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.3482/MUM/2007 / ASSESSMENT YEAR 1998-99 THE ITO 9(2)(4), ROOM NO.255, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 / VS. M/S. PELICAN SYNTEX PVT. LTD. 445, MANDHANA MANOR, WING C, MOGUL LANE, MATUNGA STATION ROAD, MUMBAI 400 016 . ./ ./ PAN/GIR NO. : AAACP3110B ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI SACHHIDANAND DUBEY RESPONDENT BY SHRI MITESH SHAH ! ' / DATE OF HEARING : 27/05/2015 ! ' / DATE OF PRONOUNCEMENT : 27/05/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) IX, MUMBAI DATED 05/02/2007 FO R ASSESSMENT YEAR 1998- 99. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, CIT(A) ERRED IN LAW AND IN MERITS IN DELETING THE PENALTY U/S. 271(1)(C) OF TH E ACT OF RS.36,48,688/-. 2. WITHOUT PREJUDICE TO GROUND NO.1 THE CIT(A) ERR ED IN HOLDING THAT NO PENALTY CAN BE IMPOSED IN CASES WHERE NO TAX IS PAYABLE EVE N THOUGH THE ASSESSMENT WAS COMPLETED U/S. 143(3) ON 8/3/2001 ON TOTAL INCO ME OF RS.11,95,879/- AND THE ONLY DELETION MADE BY THE CIT(A) RELATING TO D ISALLOWANCE OF INTEREST PAID OF RS.49,08,279/- HAS BEEN APPEALED AGAINST BEFORE THE HONBLE ITAT. . / ITA NO.3482/MUM/2007 / ASSESSMENT YEAR 1998-99 2 2. THE ADDITIONS ON WHICH THE IMPUGNED PENALTY WAS LEVIED ARE DEALT IN THE CHART SUBMITTED BY LD. AR DURING THE COURSE OF HEA RING OF THIS APPEAL. THE SAID CHART, FOR THE SAKE OF CONVENIENCE IS REPRODUC ED BELOW: S.NO. NATURE OF ADDITION/ DISALLOWANCE ADDITION BY AO CIT(A)S ORDER ITATS ORDER REMARKS 1. COMPENSATION PAID 2,134,950 DISALLOWANCE CONFIRMED DISALLOWABLE DELETED PARA 19 PAGE 11 - 2 BILL DISCOUNTING CHARGES PAGE NO.19 OF ASST. ORDER 2,802,997 DISALLOWANCE CONFIRMED SINCE NO DETAILS FURNISHED SET ASIDE TO CIT(A) PARA 20 PAGE 11 PARTICULARS FURNISHED BEFORE LOWER AUTHORITIES. 3 SELLING EXPENSES 85,119 DISALLOWANCE CONFIRMED DISALLOWANCE DELETED PARA 21 PAGE 12 - 4 SUNDRY EXPENSES 493,480 DISALLOWANCE CONFIRMED DISALLOWANCE DELETED PARA 22 PAGE 12 - 5 INTEREST EXPENDITURE 4,908,279 ADDITION DELETED CIT(A)S ORDER UPHELD PARA 23 PAGE 12/13 AS IT CAN BE SEEN FROM THE ABOVE CHART, AT SL. NO.1 ,3,4 & 5 THE ADDITIONS HAVE BEEN DELETED VIDE ORDER OF THE TRIBUNAL IN ITA NO. 3805,4103, 3803 & 4572/MUM/2004 DATED 30/4/2015 BY THE RELEVANT PARA DESCRIBED IN THE CHART AND SUCH FACT WAS NOT DISPUTED BY LD. DR. ACCORDIN GLY, THERE CANNOT BE ANY QUESTION FOR LEVY OF CONCEALMENT PENALTY WITH REGA RD TO ADDITIONS WHICH HAVE BEEN DELETED. THEREFORE, TO THE EXTENT ADDITIONS S TATED AT SL NO.1,3,4 &5 OF THE AFOREMENTIONED CHART, WE HOLD THAT LD. CIT(A) DID N OT COMMIT ANY ERROR IN DELETING THE CONCEALMENT PENALTY AND HIS ORDER OF DELETION OF PENALTY ON THESE ISSUES IS CONFIRMED. 3. THE ONLY QUESTION REMAIN IS ABOUT ADDITION STAT ED AT SL NO.2, WHICH ADDITION HAS BEEN SET ASIDE BY THE TRIBUNAL IN THE AFOREMENTIONED ORDER DATED 30/4/2015 WITH THE FOLLOWING OBSERVATIONS: . / ITA NO.3482/MUM/2007 / ASSESSMENT YEAR 1998-99 3 20. THE NEXT ISSUE RELATES TO DISALLOWANCE OF BIL L DISCOUNTING CHARGES CLAIMED BY THE ASSESSEE. THE ID. AR SUBMITTED THAT THE LD.C IT(A) HAS CONFIRMED THE' DISALLOWANCE BY HOLDING THAT THE ASSESSEE HAS NOT F URNISHED ANY DETAIL RELATING TO THE SAME. THE LD. AR INVITED OUR ATTENTION TO TH E VARIOUS DETAILS FILED BEFORE BOTH THE AO AS WELL AS LD.CIT(A), WHICH ARE PLACED IN THE PAPER BOOK. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE RELEV ANT DETAILS BEFORE THE TAX AUTHORITIES AND ACCORDINGLY CONTENDED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE BY STATING THAT THE ASS ESSEE HAS NOT FILED REQUIRED DETAILS. ACCORDINGLY, HE PRAYED THAT THIS ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A) FOR FRESH CONSIDERATION. THE LD. DR DID N OT OBJECT TO THE PLEA PUT- FORTH BY THE ID.AR. ACCORDINGLY, WE SET ASIDE THE ORDER O F LD.CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE FOR FRESH CONSIDERATIO N WITH A DIRECTION TO DISPOSE OF THIS ISSUE BY DULY CONSIDERING THE INFORMATION AND EXPLANATIONS THAT MAY BE FILED BY THE ASSESSEE 3.1 IN THIS VIEW OF THE SITUATION, AFTER HEARING BO TH THE PARTIES, SO FAR AS IT RELATES TO LEVY OF CONCEALMENT PENALTY ON THIS ADDI TION, WE RESTORE THE ISSUE TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE LEVY OF PENALTY ON THIS ADDITION AFTER DECIDING THE QUANTUM WHICH HAS BEEN RESTORED BY TH E TRIBUNAL AS PER AFOREMENTIONED OBSERVATIONS AFTER GIVING THE ASSESS EE A REASONABLE OPPORTUNITY OF HEARING. 4. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 27/05/20 15 () * + 27/05/2015 SD/- SD/- ( , / RAJENDRA) ( . . / I.P. BANSAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( MUMBAI; * DATED 27/05/2015 . / ITA NO.3482/MUM/2007 / ASSESSMENT YEAR 1998-99 4 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. .! ( ) / THE CIT(A)- 4. .! / CIT 5. /0 !12 , ' 12 , ( / DR, ITAT, MUMBAI 6. 3 / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI . . ./ VM , SR. PS