JAYA BABAN KADAM, MUMBAI V. ACIT 26(1) (ERSTWHILE), MUMBAI

ITA 3933/MUM/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4908 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2002-2003
• Appeal Filed On: 30-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL , AM / I .T.A. NO S . 3933 & 3934 /MUM/20 1 7 ( / ASSESSMENT YEAR S : 2002 - 03 & 20 03 - 04 ) JAYA BABAN KADAM 34/ 42 RSC - 13, GORAI LINK ROAD, BORIVALI (W) MUMBAI - 400092. / VS. ERSTWHILE ACIT 26(21), KG MITTAL HOSPITAL BLDG, 6 TH FLOOR, R. NO.610, CHARNI ROAD, MUMBAI - 400002 . ./ ./ PAN/GIR NO. : ABOPA3306A ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 17 /1 2 / 2020 / DATE OF PRONOUNCEMENT : 01 / 0 3 / 202 1 / O R D E R PER AMARJIT SINGH (JM) : THE ASSESSEE HAS FILED THE ABOVE MENTIONED APPEAL S AGAINST THE ORDER DATED 14.03.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 46 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y S . 2002 - 03 & 2003 - 04 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDER ED TO BE CONFIRMED BY THE CIT(A) . ITA. NO.3933 /M UM /201 7 2 . THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 14 .0 3 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL S) - 46 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. ASSESSEE BY : SHRI RAJESH GUPTA (AR) REVENUE BY: SHRI USHA GAIKWAD (DR) ITA. NO S. 3933 TO 3934 /M/201 7 A.YS. 2002 - 03 & 2003 - 04 2 2002 - 03 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDERED TO BE CONFIRMED . 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LEVYING PENALTY U/S 271(1)(C) OF THE I. T . ACT, ON AN AMOUNT OF RS.3,28,129 / - . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LEVYING PENALTY EVEN WHEN THE SUBJECT MATTER IS IN APPEAL. 3. ON THE FACTS AND CI RCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT ACCEPTING THE CASH FLOW WHICH WAS ACCEPTED BY THE AO IN HIS REMAND REPORT. 4 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ENHANCING INCOME BY RS.2,10,129 AS SHORT TERM CAPITAL GAI N AND RS.1,18,000/ - AS INCOME FROM PROFESSIONAL INCOME. 5 . THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER AND/OR MODIFY ANY OF THE ABOVE MENTIONED HEREINABOVE. 4 . THE BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT . AGA INST THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHICH WAS DECIDED ON 06.09.2016. THE ASSESSEE HAS EARNED THE PROFESSIONAL INCOME OF RS.1,18,000/ - WHICH WAS SHOWN IN THE RETURN OF INCOME. HOW EVER, THE SAME WAS SHOWN IN THE OWN FUND FLOW STATEMENT. THE SAME WAS REFLECTED AS PROFESSIONAL FEES. THE PENALTY PROCEEDING WAS INITIATED AND PENALTY IN SUM OF RS. 1,00,407/ - WAS LEVIED. FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ITA. NO S. 3933 TO 3934 /M/201 7 A.YS. 2002 - 03 & 2003 - 04 3 CONFIRMED THE PENALTY , THEREFORE, THE A SSESSEE HAS FILED THE PRESENT APPEAL BEFORE US . 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . WE FIND THAT THE HONBLE ITAT HAS REMANDED THE ISSUE BEFORE THE AO BY VIRTUE OF ORDER DATED ON 01.02.20 19 B EARING ITA. NO.7591 TO 7593/M/2016 FOR THE A.YS. 1997 - 98, 2002 - 03 & 2003 - 04, THEREFORE, THE PENALTY IS NOT LIABLE TO LEVIABLE. SINCE THE ADDITION IS NOT IN EXISTENCE AND THE ISSUE HAS BEEN RESTORE D TO THE AO, THEREFORE, IN THE SAID CIRCUMSTANCES, N O PE NALTY IS LEVIABLE, HENCE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND DELETE THE PENALTY. ITA. NO. 3934 /M UM /201 7 6 . THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 14 .0 3 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 46 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2003 - 0 4 IN WHICH THE PENALTY LEVIED BY THE AO HAS BEEN ORDERED TO BE CONFIRMED. 7 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) ERRED IN LEVYING PENALTY U/S 271(1)(C) OF THE I. T. ACT, ON AN AMOUNT OF RS.85,000/ - . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE ASSESSEE HAD VOLUNTARILY OFFERED RS.85,000/ - AS HER PROFESSIONAL INCOME. ITA. NO S. 3933 TO 3934 /M/201 7 A.YS. 2002 - 03 & 2003 - 04 4 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT ACCEPTING THE FACT THAT IT WAS AN INADVERTENT ERROR ON THE PART OF THE AO IN COMPUTING THE SAME WHILE COMPLETING THE REMAND PROCEEDINGS. 4. THE APPELLANT CRAVE S LEAVE TO ADD, AMEND, ALTER AND/OR MODIFY ANY OF THE ABOVE MENTIONED HEREINABOVE. 8. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 27.03.2006 . THEREAFTER, THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) WHICH WAS DECIDED ON 06.09.2016. THE ASSESSEE FAILED TO REFLECT THE PROFESSIONAL FEES IN SUM OF RS.85,000/ - . HOWEVER, THE SAME WAS REFLECTED IN OWN FUND STATEMENT. THE PENALTY PROCEEDING WAS INITIATED AND PENALTY IN SUM OF RS. 26,775/ - WAS LEVIED. FEELING AGGRIEVED, THE ASS ESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE PENALTY, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US . 9. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . WE FIND THAT THE HON BLE ITAT HAS REMANDED THE ISSUE BEFORE THE AO BY VIRTU E OF ORDER DATED ON 01.02.2019 B EARING ITA. NO.7591 TO 7593/M/2016 FOR THE A.YS. 1997 - 98, 2002 - 03 & 2003 - 04, THEREFORE, THE PENALTY IS NOT LIABLE TO SUSTAINABLE. SINCE THE ADDITION IS NOT IN EXISTENCE A ND THE MATTER OF CONTROVERSY HAS BEEN RESTORE D TO THE AO, THEREFORE, IN THE SAID CIRCUMSTANCES, NO PENALTY IS LEVIABLE, HENCE WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND DELETE THE PENALTY. ITA. NO S. 3933 TO 3934 /M/201 7 A.YS. 2002 - 03 & 2003 - 04 5 10 . IN THE RESULT, THE APPEAL S FILED BY THE ASSESS EE ARE HEREBY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 01 /0 3 / 20 2 1 SD/ - SD/ - ( M ANOJ KUMAR AG GARWAL ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 01 /0 3 / 20 2 1 V IJAY PAL SINGH/SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE C OPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI