THE ITO 9(2)(4), MUMBAI V. M/S. PATHAK CONSTRUCTION & FINANCE PVT. LTD, MUMBAI

ITA 4295/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1195 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 23-03-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 06-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 115JB; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C: MUMBAI BEFORE SHRI D MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO 4295/MUM/2007 ASSESSMENT YEARS 2001-02 INCOME-TAX OFFICER-9(2)(4), ROOM NO 255, AAYAKAR BHAVAN, MUMBAI -400 020 VS PATHAK CONSTRUCTION & FINANCE PVT LTD, NO 4, SHRI BHALCHANDRA KRIPA, DAULAT NAGAR ROAD NO 3, BORIVLI (E), MUMBAI -400 066 PAN AABCP 4118 L (APPELLANT) (RESPONDENT) FOR APPELLANT : NONE FOR RESPONDENT : NONE ORDER PER RAJENDRA SINGH, AM 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 12.03.2007 OF CIT (A) FOR THE ASSESSMENT YEAR 200 1-02. THE ONLY DISPUTE RAISED IS REGARDING LEVY OF PENALTY U/S 27 1(1)(C). 2. THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 HAD DECLARED NIL INCOME IN THE RETURN FILED ON 29. 10.2 001 AND THE INCOME DECLARED U/S 115JB WAS RS 27,628/-. SUBSEQUENTLY, ASSESSME NT WAS COMPLETED U/S 143(3) ON 31.3.2004 AND TOTAL INCOME WAS COMPUTED AT RS 31,00,130/-. THE ASSESSING OFFICER MADE ADDITION OF RS 26.85 LAKHS ON ACCOUNT OF DIFFERENCE IN THE SALE RECEIPTS OF F LATS AND RS 5.88 LAKHS BEING THE DIFFERENT TO VALUATION OF CLOSING STOCK. 3. IN APPEAL, THE CIT (A) CONFIRMED THE ADDITION AF TER ALLOWING SOME RELIEF IN RESPECT OF DISALLOWANCE ON ACCOUNT OF BROKE RAGE AND ITA 4295/M/2007 PATHAK CONSTRUCTION & FINANCE PVT LTD 2 COMMISSION. THE ASSESSING OFFICER HAD INITIATED PENALTY PR OCEEDINGS FOR CONCEALMENT OF INCOME IN RESPECT OF ADDITIONS MADE. THE ASSESSEE DID NOT RESPOND TO THE SHOW CAUSE NOTICE ISSUED BY THE ASSESSI NG OFFICER FOR LEVYING PENALTY. THE ASSESSING OFFICER, THER EFORE, IMPOSED THE MINIMUM PENALTY @ 100% OF TAX SOUGHT TO BE EVADE D, AMOUNTING TO RS 11,56,175/-. 4. IN APPEAL, CIT (A) OBSERVED THAT IN ASSESSMENT ORDER , ASSESSING OFFICER HAD CLEARLY HELD THAT PROJECT WAS COMPLET E IN ASSESSMENT YEAR 2000-01 AND INCOME IN RESPECT OF FLATS FOR WHICH FULL CONSIDERATION HAD BEEN RECEIVED OR SALE AGREEMENTS HAD BEEN ENTERED TO BY 31.3.2000 HAD TO BE ASSESSED IN THE ASSESSMENT YEAR 2 001-02. SINCE THE ASSESSEE HAD DECLARED THE INCOME IN ASSESSMENT YEAR 2001- 02, THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT ONLY O N PROTECTIVE BASIS AND HAD REOPENED THE ASSESSMENT FOR ASSESSMEN T YEAR 2000-01. SINCE THE ASSESSING OFFICER HAD HIMSELF HE LD THAT INCOME WAS ASSESSABLE IN THE ASSESSMENT YEAR 2001-02 AND ASSESSMENT MADE FOR THIS YEAR WAS ONLY ON PROTECTIVE BASIS , NO PENALTY COULD BE IMPOSED FOR CONCEALMENT OF INCOME. CIT (A), THEREFORE, DELETED THE PENALTY IMPOSED, AGGRIEVED BY WHICH, THE REVENUE IS IN APPEAL. 5. BEFORE US NO ONE APPEARED TO REPRESENT THE CASE EI THER ON BEHALF OF THE ASSESSEE OR ON BEHALF OF THE DEPARTMENT T HOUGH THE NOTICE HAD BEEN GIVEN WELL IN TIME. WE, THEREFORE, PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D. 6. THERE IS A CLEAR FINDING BY THE ASSESSING OFFICER THA T INCOME HAS TO BE ASSESSED FOR ASSESSMENT YEAR 2000-01 FOR WHI CH PROCEEDINGS HAVE ALREADY BEEN INITIATED BY THE ASSESSING OFFICER. THE INCOME ASSESSED IN THE ASSESSMENT YEAR 2001-02 WHICH IS UNDER ITA 4295/M/2007 PATHAK CONSTRUCTION & FINANCE PVT LTD 3 CONSIDERATION IS ONLY ON PROTECTIVE BASIS. WHEN THE ASSE SSING OFFICER HIMSELF IS OF THE VIEW THAT INCOME HAS TO BE ASSESSED FOR SOME OTHER YEAR OR IN CASES WHERE THE YEAR OF ASSESSABILITY IS DEBATAB LE, NO PENALTY CAN BE IMPOSED FOR CONCEALMENT OF INCOME. WE SEE NO INFIRMITY IN THE ORDER OF THE CIT (A) CANCELING THE P ENALTY AND SAME IS, THEREFORE, UPHELD. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH DAY OF J ULY 2010. SD/- SD/- (D MANMOHAN) (RAJENDRA SINGH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATE: 15TH JULY, 2010 . COPY TO 1. THE APPELLANT. 2. THE RESPONDENT 4. CIT(A)-IX, MUMBAI. 5. CIT IX, MUMBAI. 6. D R C BENCH, MUMBAI. 7. GUARD FILE. BY ORDER / / TRUE COPY / / ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI *CHAVAN/- ITA 4295/M/2007 PATHAK CONSTRUCTION & FINANCE PVT LTD 4 SNO DATE INITIALS 1 DRAFT DICTATED ON 12-07-2010 SR.P.S 2. DRAFT PLACED BEFORE AUTHOR 12-07-2010 SR.P.S 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.P.S 6. KEPT FOR PRONOUNCEMENT ON SR.P.S 7. FILE SENT TO THE BENCH CLERK SR.P.S 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER