PREMIER INTERMEDIATES P.LTD, MUMBAI V. ITO 9(2)(4), MUMBAI

ITA 4089/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9705 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 01-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: SHAILESH B SHETHIA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 4089 / MUM/ 201 5 ( / ASSESSMENT YEAR: 2009 - 10 ) M/S PREMIER INTERMEDIATES - PVT. LTD, 11/124, RAM KRISHNA NAGAR, S.V. ROAD, KHAR (W), MUMBAI - 400052 VS. THE ITO 9(2)(4), AAYKAR BHAWAN, 20, M.K. ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AAACP 4731 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SHAILESH B. S H ETHIA (AR) /REVENUE BY : SH. B.S. BIST (DR) / DATE OF HEARING : 01/ 05 /2017 / DATE OF PRONOUNCEMENT : 31 /0 7 /2017 / O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 06/05 /2015 PASSED BY THE LD. CIT (A) - 21 , MUMBA I , PERTAI NING TO THE ASSESSMENT YE AR 2009 - 10 , WHEREBY THE LD. CIT (A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271 (1) (C) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT) AND CONFIRMED THE PENALTY . 2 . THE ASSESSEE HAS CHALLENGED THE ORDER OF LD. CI T (APPEAL S ) ON THE FOLLOWING EFFECTIVE GROUNDS: - 1. THE LEARNED CIT (A) ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN CONFIRMING THE ADDITION OF RS. 48,04,043/ - APPLYING S.41(1) OF THE INCOME TAX ACT, 1961. 2 ITA NO. 4089 /MUM/2015 ASSESSMENT YEAR: 2009 - 1 0 2. WITHOUT PREJUDICE TO THE GROUND NO. 1, THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS IN CONSIDERING THE IMPUGNED LIABILITIES, RS. 29,71,800/ - TO TRANSWORLD TRADERS AND RS. 18,32,243/ - TO M/S PREMIER DYE CHEM CORPORATION, IN TERMS OF THEIR GENUINENESS WITHOUT APPRECIATING THE FACT THAT THE CR EDITS HAD ARISEN NOT IN THE FINANCIAL YEAR RELEVANT TO A.Y. 2009 - 10 AND ALSO WITHOUT APPRECIATING THE FACT THAT THE AO HAD MADE THE ADDITION UNDER S. 41(1) OF THE ACT WHICH EXCLUDES FROM ITS SCOPE THE VERIFICATION OF BONA FIDES OF A CREDIT. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT (A). THE LD.CIT(A) DISMISSED THE ASSESSEES APPEAL AND CONFIRMED THE ADDITION OF RS. 48,04,043/ - MADE BY THE AO APPLYING SECTION 41 ( 1) OF THE ACT. IN SECOND APPEAL THE ITAT , MUMBAI SET ASIDE THE ORDER PASSED BY THE LD. CIT (A) AND REMANDED THE ISSUE TO THE AO FOR FRESH ADJUDICATION. THE AO PASSED THE ORDER GIVING EFFECT TO THE DIRECTIONS OF THE ITAT, MUMBAI AND DELETED THE ADDITION. S INCE, THE ADDITION HAS BEEN DELETED THE PENALTY ORDER DOES NOT SURVIVE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ADMITTED THE FACTS BROUGHT TO THE NOTICE OF THE BENCH BY THE LD. COUNSEL FOR THE ASSESSEE . 5. WE HAVE GONE THROUGH THE MATERIAL ON RECOR D INCLUDING THE ORDER PASSED BY THE C O - ORDINATE BENCH IN QUANTUM APPEAL OF THE ASSESSEE, ITA NO. 2402/MUM/2013 FOR THE A.Y. UNDER CONSIDERATION AND THE ASSESSMENT ORDER PASSED BY THE AO U/S 143 (3) R.W. SECTION 254 OF THE ACT DATED 30/06/2016. WE NOTICE T HAT THE AO HAS DELE TED THE ADDITION IN QUESTION VIDE ORDER DATED 30/06/2016 PASSED U/S 143 (3) R.W. SECTION 254 OF THE ACT. SINCE, THE ADDITION , ON THE BASIS OF WHICH THE PENALTY WAS LEVIED /CONFIRMED BY THE AO /LD. CIT(A), HAS BEEN DELETED, THE PENALTY ORDE R DOES NOT SURVIVE. WE , ACCORDINGLY , ALLOW THE 3 ITA NO. 4089 /MUM/2015 ASSESSMENT YEAR: 2009 - 1 0 APPEAL OF THE ASSESSEE AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 201 0 IS ALLOWED. ORDER PRONOUNCED IN THE OP EN COURT ON 31 ST . JULY , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 31 / 0 7 / 2017 ALINDRA, 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 COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI