PUSHPA DEVELOPERS COMPANY, MUMBAI V. CIT II, MUMBAI

ITA 4178/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9147 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: VIPUL B JOSHI
• Section: 27; 263

Judgement Text

ITA NO.4178/MUM/2011 ASSESSMENT YEAR: 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI N.K. BILLAIYA (ACCOUNTANT MEMBER) ITA NO.4178/MUM/2011 ASSESSMENT YEAR: 2006-07 PUSPA DEVELOPERS COMPANY, 101, 1 ST FLOOR, PRIYADARSHINI CHS LTD., MUKUND NAGAR, DHARVI, MUMBAI-17 PA NO.AADFP 5631 M CIT-II, VARDAN BLD., MIDC, WAGLE ESTATE, THANE (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI VIPUL B JOSHI RESPONDENT BY: SHRI A.C.TEJPAL DATE OF HEARING: 12 .12.2012 DATE OF PRONOUNCEMENT: 14 .12.2012 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2006-07 AGAINST ORDER DATED 22.3.2011 OF LD CIT-II, THANE PASSED UNDER SECTION 263 OF THE ACT, VIDE WHICH, LD CIT HAS STATED THAT THE AO WHILE MAKING THE ASSE SSMENT HAD MADE ADDITION OF SUBSTANTIAL AMOUNT OF RS.2,67,29,696 TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF SALE OF TDR BUT DID NOT INITIATE PENALTY PROCEEDINGS AT THE TIME OF COMPLETING ASSESSMENT AND, ACCORDINGLY, HAS HELD THAT THE ASSESSMENT ORDE R PASSED BY THE AO IS ERRONEOUS AND IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF R EVENUE. LD CIT HAS HELD THAT AO FAILED TO TAKE NOTE OF THE PROVISIONS CONTAINED IN SECTION 27 1(1)(C) OF THE ACT. LD CIT(A) HAS DIRECTED THE AO PASS A FRESH ORDER IN ACCORDANCE WI TH THE PROVISIONS OF LAW. 2. THE ASSESSEE HAS FILED THIS APPEAL DISPUTING THE ABOVE ORDER OF LD CIT. 3. AT THE TIME OF HEARING, LD A.R. SUBMITTED THAT I N QUANTUM APPEAL FILED BY THE ASSESSEE BEING I.T.A. NO.193/M/2010 DISPUTING THE A DDITION MADE BY THE AO TOWARDS ITA NO.4178/MUM/2011 ASSESSMENT YEAR: 2006-07 2 SALE OF TDR OF RS.2,67,29,696/-, THE TRIBUNAL VIDE ITS ORDER DATED 25.4.2012 HAS RESTORED THE MATTER BACK TO THE FILE OF AO WITH A D IRECTION TO VERIFY WHETHER ASSESSEE HAS OFFERED SALE CONSIDERATION OF TDR IN THE ASSESS MENT YEAR 2008-09 AND IF SO, SAME IS NOT TAXABLE IN THE ASSESSMENT YEAR 2006-07. LD A.R FURNISHED A COPY OF ORDER OF THE TRIBUNAL DATED 25.4.2012 TO SUBSTANTIATE HIS ABOVE SUBMISSION. HE SUBMITTED THAT IN VIEW OF ABOVE ORDER OF THE TRIBUNAL, ORDER PASSED B Y LD CIT DATED 22.3.2011 IS TO BE SET ASIDE AS THE AO COULD CONSIDER FOR INITIATION OF PE NALTY PROCEEDINGS IN FRESH ASSESSMENT ORDER AS PER PROVISIONS OF LAW. 4. LD D.R. HAS NOT DISPUTED ABOVE CONTENTION OF LD A.R. SAVE AND EXCEPT RELYING ON ORDER OF LD CIT. 5. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTAT IVES OF PARTIES, IMPUGNED ORDER OF LD CIT DATED 22.3.2011 AS WELL AS ORDER DATED 25 .4.2012 OF THE TRIBUNAL (SUPRA). SINCE THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE F ILE OF AO TO EXAMINE AS TO WHETHER SAID ADDITION ON ACCOUNT OF SALE OF TDR OF RS.2,67,29,6 96/- IS ASSESSABLE IN THIS YEAR OR NOT AND AO IS TO PASS FRESH ASSESSMENT ORDER ON ABOVE I SSUE, WE AGREE WITH LD A.R. THAT IMPUGNED ORDER OF LD CIT U/S. 263 DIRECTING THE AO TO INITIATE PENALTY PROCEEDINGS U/S.271(1)(C) ON ACCOUNT OF MAKING THE SAID ADDITIO N OF RS.2,67,29,696/- DOES NOT SURVIVE. HENCE, WE SET ASIDE THE ORDER OF LD CIT U /S.263 BY ALLOWING THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED. PRONOUNCED IN THE OPEN COURT ON 14 TH DECEMBER, 2012 SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 14 TH DECEMBER, 2012 PARIDA ITA NO.4178/MUM/2011 ASSESSMENT YEAR: 2006-07 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),I, THANE 4. COMMISSIONER OF INCOME TAX, II, THANE 5. DEPARTMENTAL REPRESENTATIVE, BENCH C MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI