ACG ARTS AND PROPERTIES P.LTD, MUMBAI V. DCIT CEN CIR 7(3), MUMBAI

ITA 3604/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7483 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVLD
• Assessee Lawyers: NIYANTA MEHTA LD ARS
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 14A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3604/MUM/2017 ( / ASSESSMENT YEAR: 2009-10) ACG ARTS & PROPERTIES P VT . LTD. 1001, DALAMAL HOUSE 10 TH FLOOR NARIMAN POINT MUMBAI-400 021. / VS. D CIT - 7(3) AAYKAR BHAVAN M.K. ROAD MUMBAI-400 020. ! ./ ./PAN/GIR NO. AAACU-0615-L ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : MS. MANSHI PADHIAR & MS. NIYANTA MEHTA- LD. ARS REVENUE BY : SHRI RAJESH KUMAR YADAV - LD.DR / DATE OF HEARING : 25/04/2019 / DATE OF PRONOUNCEMENT : 03/05/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2009-10 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-49, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-49/IT-54/2015-16 D ATED 22/03/2017 QUA PART CONFIRMATION OF PENALTY U/S 271(1)(C). 2. EXPLAINING THE SAME, LD. AUTHORIZED REPRESENTATI VE FOR ASSESSEE [AR], MS. MANSHI PADIHAR SUBMITTED THAT PENALTY FOR RS.2,88,393/- WAS 2 LEVIED BY LD. AO ON 30/03/2015 AGAINST 14A DISALLOW ANCE OF RS.9,33,311/- MADE IN AN ASSESSMENT U/S143(3) ON 31 /10/2011. THE QUANTUM OF DISALLOWANCE WAS AGITATED BEFORE THIS TR IBUNAL VIDE ITA NO. 7582/MUM/2013 ORDER DATED 15/02/2017 WHEREIN THE MA TTER OF DISALLOWANCE WAS SET ASIDE TO LD. AO TO RECOMPUTE T HE SAME AFTER EXCLUDING STRATEGIC INVESTMENTS MADE BY THE ASSESSE E. PURSUANT TO THE SAID DIRECTIONS, AN ORDER U/S 143(3) R.W.S. 254 WAS PASSED BY LD. AO ON 23/06/2017 WHEREIN THE DISALLOWANCE HAS BEEN RECOMP UTED AT RS.14,957/-. 3. SUBSEQUENTLY, THE MATTER OF PENALTY AS LEVIED BY LD. AO WAS CONSIDERED BY THE LD. FIRST APPELLATE AUTHORITY VID E IMPUGNED ORDER DATED 22/03/2017 WHEREIN A DIRECTION WAS ISSUED TO LD. AO TO RECOMPUTE THE PENALTY ON REVISED DISALLOWANCE. AGGRIEVED BY CONFI RMATION OF PENALTY TO THAT EXTENT, THE ASSESSEE IS IN FURTHER APPEAL BEFO RE US. THE LD. AR SUBMITTED THAT CONFIRMATION OF PENALTY EVEN TO THAT EXTENT WAS NOT JUSTIFIED SINCE THE PRIMARY INGREDIENTS OF SECTION 271(1)(C) WOULD NOT BE FULFILLED SO AS TO ATTRACT THE SAID PENALTY. THE LD . DR SUBMITTED THAT PENALTY TO THE EXTENT OF QUANTUM SUSTAINED BY TRIBU NAL WOULD BE CONFIRMED. 4. UPON CAREFUL CONSIDERATION, WE AGREE WITH THE SU BMISSIONS OF LD. AR THAT THE FACTUAL MATRIX WOULD NOT WARRANT PENALT Y SINCE THERE WAS NO FURNISHING OF INACCURATE PARTICULARS OF INCOME OR C ONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE RATHER A DISALLOWANCE U /S 14A WAS MADE IN THE HANDS OF THE ASSESSEE, WHICH WAS ON ESTIMATED B ASIS. THEREFORE, WE HOLD THAT THE PENALTY TO THE EXTENT AS DIRECTED BY LD. FIRST APPELLATE AUTHORITY WOULD NOT BE SUSTAINABLE. 5. THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. 3 ORDER PRONOUNCED IN THE OPEN COURT ON 03/05/2019. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 03/05/2019 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,- & . , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.