AMBUJA CEMENT INDIA P.LTD ( FORMELRY KNOWN AS AMBUJA CEMENT INDIA LTD), MUMBAI V. DCIT CIR 3(1), MUMBAI

ITA 3619/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3579 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BASANT KASAT; SUNNY AHOK WADHWA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI .. , ! , '# ' $ BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 3619/MUM/2012 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR: 2004-05) AMBUJA CEMENT INDIA PRIVATE LIMITED (FORMERLY KNOWN AS AMBUJA CEMENT INDIA LIMITED) ELEGANT BUSINESS PARK, MIDC CROSS ROAD B, OFF. ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400 059 & & & & / VS. DY. CIT, CIRCLE- 3(1), AAYAKAR BHAWAN, M. K. ROAD, MUMBAI-400 020 ) '# ./ * ./ PAN/GIR NO. AACCA 3390 A ( )+ / APPELLANT ) : ( ,-)+ / RESPONDENT ) )+ . ' / APPELLANT BY : SHRI SUNNY AHOK WADHWA & SHRI BASANT KASAT ,-)+ / . ' / RESPONDENT BY : SHRI MANOJ KUMAR & / 01# / // / DATE OF HEARING : 12.06.2013 2 ( / 01# / DATE OF PRONOUNCEMENT : 21.06.2013 '3 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-5, MUMBAI (CIT(A) FOR SHO RT) DATED 01.03.2012, CONFIRMING THE LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2004-05 VIDE ORDER DATED 31.03.2010. 2 ITA NO.3619/MUM/2012 (A.Y. 2004-05) AMBUJA CEMENT INDIA PRIVATE LIMITED VS. DY. CIT 2. THE PENALTY IN THE INSTANT CASE STANDS LEVIED IN THE SUM OF RS.2,41,858/-, I.E., AT 100% OF THE TAX SOUGHT TO BE EVADED, IN VIEW OF EXPLANATION (4) TO SECTION 271(1)(C). THE ENTIRE ENHANCEMENT IN ASSESSMENT HAVING BEEN ABSORB ED AGAINST BROUGHT FORWARD (UNABSORBED) BUSINESS LOSSES, THERE WAS NO TAX IMPA CT OF THE SAID ENHANCEMENT. THE SAME WAS, HOWEVER, CONSIDERED AS OF NO MOMENT BY THE LD. CIT(A) IN VIEW OF EXPLANATION (4) TO THE PROVISION, FURTHER RELYING ON THE DECISION INTER ALIA BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. GOLD COIN HEALTH FOOD P. LTD. [2008] 304 ITR 308 (SC). AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD AS WELL AS THE CASE LAW CITED. THE ASSESSEES CASE BEFORE US WAS BASED PRIMARILY ON THE DECISION BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NALWA SONS INVESTMENTS LTD. [2010] 327 ITR 543 (DEL). IT STANDS EXPLAINED THEREIN THAT NOT WITHSTANDING THE INCREASE IN THE ASSESSED INCOME VIS--VIS AS RETURNED, UNDER THE REGULAR PROVISIONS OF THE ACT, THE SAME HAS NO TAX IMPACT INASMUCH AS THE TAX PAID AND ASSE SSED IS IN TERMS OF BOOK PROFIT, WHICH REMAINS UNCHANGED ON ASSESSMENT. THERE IS CON SEQUENTLY NO TAX THAT COULD BE SAID TO HAVE BEEN EVADED EVEN ON INVOKING EXPLANATION (4) TO THE PROVISION. THE DECISION IN THE CASE OF GOLD COIN HEALTH FOOD P. LTD . (SUPRA) STANDS ALSO CONSIDERED BY THE HONBLE COURT. NO DECISION TAKING A CONTRARY VIEW IN THE MATTER HA S BEEN BROUGHT TO OUR NOTICE. RATHER, AS INFORMED, THE SPECIAL LEAVE PETITION (SL P) PREFERRED BY THE REVENUE AGAINST THE SAID DECISION BY THE HONBLE DELHI COURT HAS SI NCE BEEN DISMISSED BY THE APEX COURT (IN SLP NO.18564/2011). THE MATTER, THUS, STANDS EF FECTIVELY CONCLUDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. UNDER THESE CIRCU MSTANCES, WE HAVE NO HESITATION IN, ACCEPTING THE ASSESSEES PLEA PER ITS GROUNDS # 1 & 2, DIRECTING DELETION OF THE IMPUGNED LEVY. WE DECIDE ACCORDINGLY. 3 ITA NO.3619/MUM/2012 (A.Y. 2004-05) AMBUJA CEMENT INDIA PRIVATE LIMITED VS. DY. CIT 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. 4 05 & '40 / 60 / 0 78 ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 21, 2013 '3 / 2 ( #' 9&5:& 21 , 2013 / ? SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER '# / ACCOUNTANT MEMBER MUMBAI; 9& DATED : 21.06.2013 .&../ ROSHANI , SR. PS '3 / ,0@ A'@(0 '3 / ,0@ A'@(0 '3 / ,0@ A'@(0 '3 / ,0@ A'@(0/ COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT 3. B ( ) / THE CIT(A) 4. B / CIT CONCERNED 5. @E? ,0& , , / DR, ITAT, MUMBAI 6. ?F' G / GUARD FILE '3& '3& '3& '3& / BY ORDER, H HH H/ // /7 7 7 7 (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI