M/s. TELCO DADAJEE DHACKJEE LTD. (NOW MERGED WITH TATA MORTORS LTD), MUMBAI V. ACIT 2(3), MUMBAI

ITA 3898/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1704 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-10-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 03-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR
• Assessee Lawyers: DINESH VYAS
• Keywords: Tangible material; Difference of opinion
• Section: 147

Judgement Text

ITA NO. 3898/MUM/2008 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI R S SYAL, AM & SHRI R S PADVEKAR, JM ITA NO. 3898/MUM/2008 (ASST YEAR1998-99) TELCO DADAJEE DHACKJEE LTD ( NOW MERGED WITH TATA MOTORS LTD) BOMBAY HOUSE 24 HOMI MODY ST HUTATMA CHOWK MUMBAI 400 001 VS THE ASST COMMR OF INCOME TAX 2(3), MUMBAI (APPELLANT) (RESPONDENT) PAN AAACM4485A ASSESSEE BY: SHRI DINESH VYAS REVENUE BY: SHRI SUMIT KUMAR O R D E R PER R S PADVEKAR: IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A) FOR THE ASSESSMENT YEAR 1998-99 DATED 5. 12.2008. 2 THE ONLY ISSUE ARISES IN THIS APPEAL FOR OUR CONS IDERATION IS IN RESPECT OF PENALTY LEVIED U/S 271(1)( C) AND CONFIRMED BY T HE LD CIT(A). 3 WE HAVE HEARD THE PARTIES. THE LD SENIOR COUNSEL OF THE ASSESSEE SHRI DINESH VYAS SUBMITTED THAT IN THIS CASE, THE ORIGIN AL RETURN FILED BY THE ASSESSEE WAS ACCEPTED U/S 143(1) AND SUBSEQUENTLY T HE AO ISSUED NOTICED U/S 148. THE ASSESSEE CHALLENGED THE VALIDITY OF TH E NOTICE ISSUED U/S 148. WHEN THE MATTER REACHED BEFORE THE TRIBUNAL, THERE WAS A DIFFERENCE OF OPINION BETWEEN THE LEARNED MEMBERS OF THE TRIBUNAL . THE MATTER REFERRED TO THE THIRD MEMBER AND THE LD THIRD MEMBER, VIDE ORDER DATED 12.5.2010 AGREED WITH VIEW TAKEN BY THE LEARNED JUDICIAL MEMB ER AND AS MAJORITY ITA NO. 3898/MUM/2008 2 OPINION GOES IN FAVOUR OF THE ASSESSEE, HENCE, PRO CEEDINGS INITIATED BY THE A.O. U/S 147 IS LIABLE TO BE QUASHED ON THE GROUND THAT THERE WAS NO TANGIBLE MATERIAL BEFORE THE AO. THE LD COUNSEL FIL ED COPY OF THE ORDER OF THE LEARNED THIRD MEMBER OF THE ITAT DECIDED IN ITA N O.4613/MUM/2005 FOR A.Y 1998-99; DATED 12.5.2010, WHICH IS PLACED ON R ECORD. 5 WE HAVE PERUSED THE ORDER OF THE LEARNED THIRD ME MBER OF THE TRIBUNAL WHICH IS PLACED ON RECORD. AS PER THE ORDE R OF THE LEARNED THIRD MEMBER IN ITA NO. 4613/MUM/05 DATED 12.5.2010, PRO CEEDINGS INITIATED BY THE AO U/S 147 ARE LIABLE TO BE QUASHED AND IT I S A MAJORITY VIEW. AS THE ASSESSMENT PROCEEDINGS ARE LIABLE TO BE QUASHED; TH E PENALTY DOES NOT SURVIVE. WE, ACCORDINGLY, CANCELLED THE PENALTY OR DER PASSED BY THE AO AS VERY THE BASIS OF THE LEVY OF PENALTY DOES NOT SURV IVE DUE TO THE MAJORITY VIEW TAKEN IN THIS CASE. 6 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED ON THE 11TH DAY OF JUNE 2010. SD/- SD/- (R S SYAL ) ACCOUNTANT MEMBER (R S PADVEKAR ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 11 TH JUNE 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI