ASST CIT 2(2)(2), MUMBAI V. MILTON PLASTICS LTD, MUMBAI

ITA 3650/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8846 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 07-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 12-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: ALPESH PARAGBHAI LAD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI C. N. PRASAD , J M ./ I.T.A. NO. 3650/MUM/2015 ( / ASSESSMENT YEAR: 2008 - 09) ASST. CIT, CIRC LE - 2(2)(2), R. NO. 545, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 / VS. M/S. MILTON PLASTICS LTD. ASIAN BUILDING, 4 TH FLOOR, R. KAMANI MARG, BALLARD ESTATE, MUMBAI - 400 001 ./ ./ PAN/GIR NO. AAACM 4047 Q ( / AP PELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI T. A. KHAN / RESPONDENT BY : SHRI ALPESH PARAGBHAI LAD / DATE OF HEARING : 18.10.2017 / DATE OF PRONOUNCEMENT : 01.11 .2017 / O R D E R PER SHAMIM YAHYA , A. M.: THIS APPEAL BY THE R EVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT( A ) - 5, MUMBAI DATED 31 .0 3 . 2015 AND PERTAINS TO ASSESSMENT YEAR 2008 - 09 . 2. T HE GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND I N THE CIRCU MSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY LEVIED U/S. 271(1)(C), WITHOUT APPRECIATING THAT ASSESSEE HAD MADE 78% OF ITS SALES TO ASSOCIATES CONCERNS AT 2 ITA NO. 3650/MUM/2015 (A.Y. 2008 - 09) ASST. CIT VS. M/S. MILT ON PLASTICS LTD. A DISCOUNT OF 12% WITH SOLE MOTIVE OF EVADING PAYMENT OF TAX PARTICULARLY BECAUSE THE ASSOCIATE CONCERN WAS ELIGIBLE FOR DEDUCTION U/S. 80 - IB OF THE ACT. 2. ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY LEVIED U/S. 271(1)(C), WITHOUT APPRECIATING TH E FACT THAT THE QUANTUM ADDITION ON ACCOUNT OF SELLING GOODS TO ITS ASSOCIATES CONCERN AT A DISCOUNT OF 12% HAD BEEN UPHELD BY THE LD. CIT(A). 3. AT THE OUTSET , IN THIS CASE THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS IS AN APPEAL RELATING T O LEVY OF PENALTY U /S. 271(1)(C) OF RS. 1,74,44,453 WITH REFERENCE TO ADDITION OF RS.5,68,14,843/ - ON ACCOUNT OF THE DIFFERENCE IN PRIC E CHARGED FROM SISTER CONCERN. THE L EARNED COUNSEL SUBMITTED THAT THE QUANTUM APPEAL WITH REFERENCE TO WHICH THIS PENALTY HAS BEEN LEVIED HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL IN ITA NO. 7120/MUM/2011 DATED 01.09.2017. 4. H ENCE , THE LEARNED COUNSEL PLE ADED THAT SINCE THE ADDITION HAS ALREADY BEEN DELETED , THE PENALTY LEVIED DOES NOT SURVIVE. 5 . PER CONTRA , THE LEARNED DEPARTMENTAL REPRESENTATIVE ACCEPTED THAT THE ADDITION WITH REFERENCE TO WHICH THIS PENALTY HAS BEEN LEVIED HAS ALREADY BEEN DELETED BY THIS TRIBUNAL, AS ABOVE. 6. ACCORDINGLY , AFTER CAREFUL CONSIDERATION , WE FIND THAT SINCE THE ADDITION WITH REFERENCE TO WHICH THIS PENALTY U /S. 271(1)(C) HAS BEEN LEVIED AND HAS ALREADY BEEN DELETED BY THE TRIBUNAL . T HE PENALTY LE VI ED WITH REFERENCE TO THE ABOVE ADDITION ALSO DOESN'T SURVIVE. HENCE , THE DELETION OF THE PENALTY BY THE LD. CIT(A) I S UPHELD. 3 ITA NO. 3650/MUM/2015 (A.Y. 2008 - 09) ASST. CIT VS. M/S. MILT ON PLASTICS LTD. 7. IN THE RESULT , THIS APPEAL FILED BY THE R EVENUE STANDS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 01.11.2017 SD/ - SD/ - ( C. N. PRASAD ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CC OUNTANT MEMBER MUMBAI ; DATED : 01.11.2017 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - C ONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI