ITO 25(2)(4), MUMBAI V. RANJITSINGH M. GOHIL, MUMBAI

ITA 4085/MUM/2010

• Counselvise Citation: 408519914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 19-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Tax effect; Revised return
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND B. RAMAKOTAIAH ( A.M ) ITA NO.4085/MUM/2010 (ASSESSMENT YEAR :2004-05) INCOME TAX OFFICER 25(2)(4), C-11, FIRST FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051. SHRI RANJITSINGH M.GOHIL, PROP.OF M/S SITARAM T RAVELS, SHREENATH KRUPA, SHOP NO.04, CARTER ROAD NO.5, BORIVALI (EAST), MUMBAI-400066. PAN:AALPG1412B APPELLANT V/S RESPONDENT DATE OF HEARING : 24.8.2011 DATE OF PRONOUNCEMENT : 30.8.2011 APPELLANT BY : SHRI C.G.K.NAIR RESPONDENT BY : SHRI SAMEER G.DALA L O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 5.3.2010 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2004-05. 2. THE GROUNDS TAKEN BY THE REVENUE READ AS U NDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED BY THE WITHOUT APPRECIATING THE FACT THAT THE ASS ESSEE HAS FILED REVISED RETURN OF INCOME BELATEDLY, WITHDRAWING THE CLAIM OF EXEMPTION U/S 54 AFTER REC EIPT OF NOTICE U/SECTION 143(2) AS THE ASSESSEE HAS N O DOCUMENTARY PROOF FOR CLAIM OF EXEMPTION U/S 54, 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THA T OF THE AO BE RESTORED. ITA NO.4085/MUM/2010 (ASSESSMENT YEAR :2004-05) 2 3. IN THIS CASE ON THE SUSTENANCE OF DISALLOWANCE OF INTEREST RS.1,18,727/-, INCOME FROM PROPRIETARY CON CERN RS.10,58,727/- AND LONG TERM CAPITAL GAIN TREATED A S INCOME FROM OTHER SOURCES OF RS.7,09,123/- AGGREGATING TO RS.18,86,577/-, THE AO HAS IMPOSED PENALTY UNDER S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT) OF RS.7,00,000/- VIDE ORDER DATED 30.3.2009. ON APPEA L, THE LD. CIT(A) WHILE DELETING THE PENALTY ON THE WITHDRAWAL OF CLAIM OF DEDUCTION U/S 54 AMOUNTING TO RS.7,09,123/- HAS CONFIRMED THE PENALTY OF OTHER ITEMS I.E. INCOME FR OM BUS AND DISALLOWANCE OF INTEREST. AGAINST THE DELETION OF P ENALTY ON THE WITHDRAWALS OF EXEMPTION U/S 54 RS.7,09,123/- T HE REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING, IT HAS BEEN OBSERVED THA T THE TAX EFFECT ON THE ABOVE APPEAL FILED BY THE REVENU E IN RESPECT OF DELETION OF PENALTY ON THE AMOUNT OF RS. 7,09,123/- IS LESS THAN RS.3,00,000/-. THE LD.DR DID NOT DISPU TE ON THE SAID FACTUAL MATRIX OF THE CASE. 5. THAT BEING SO AND IN TERMS OF THE RECENT CBDT INSTRUCTION NO. 3 OF 2011 DATED 9 TH FEBRUARY, 2011 REPORTED IN ( 2011) 332 ITR 1 (STATUTES) AND KEEPING IN VIEW THE RATIO OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE ITA NO.4085/MUM/2010 (ASSESSMENT YEAR :2004-05) 3 CASE OF CIT V/S MADHUKAR K. INAMDAR (HUF) ( 2009) 3 18 ITR 148 (BOM.), WHEREIN IT HAS BEEN HELD THAT THE REVIS ED MONETARY LIMIT IN THE CIRCULAR DATED MAY 15, 2008 W OULD BE APPLICABLE FOR ALL PENDING APPEALS AND ALSO THE CON SISTENT VIEW OF THE CO- ORDINATE BENCHES OF THE TRIBUNAL, WE ARE OF THE VIEW THAT THE DEPARTMENT SHOULD NOT HAVE FILED THE APPEAL AND ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE REVENUES APPEAL STANDS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH AUGUST , 2011. SD SD (B. RAMAKOTAIAH) (D. K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30TH AUGUST, 2011 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI