THE ITO 8(1)(3), MUMBAI V. M/S. ELECTRONICS & ENGINEERING CO. (I) P. LTD, MUMBAI

ITA 4358/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2010 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 10-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 23-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJNEESH ARVIND
• Assessee Lawyers: MA YUR KISHNADWALA
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI B. RAMAKOT AIAH ,(AM) ITA NO.4358/MUM/2008 ASSESSMENT YEAR : 2002-03 INCOME TAX OFFICER- 8(1)(3), ROOM NO.206, IIND FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ..( APPELLANT ) P.A. NO. (AAACE 3165 H) VS. M/S. ELECTRONICS & ENGINEERING CO. (I) PVT. LTD., 8, JYOTI WIRE HOUSE VEERA DESAI ROAD ANDHERI (W) MUMBAI-400 058. ..( RESPONDENT ) APPELLANT BY : SHRI RAJNEESH ARVIND RESPONDENT BY : SHRI MA YUR KISHNADWALA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 21.4.2008 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2002-03 DELETING THE PENALTY IMPOSED BY THE ASSESSI NG OFFICER U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961(THE ACT) AMO UNTING TO RS.2,43,105/-. 2. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED T HAT THE TRIBUNAL IN THE QUANTUM APPEAL IN ELECTRONIC & ENGINEERING CO. (I) PVT. LTD. VS. ITO-8(1)(3) IN ITA NO.1725/MUM/06 FOR ASSESSMENT YEAR 2 002-03 VIDE ORDER DATED 18.11.2008 HAS SET ASIDE THE ISSUE ON WHICH THE ASSESSING OFFICER HAS IMPOSED PENALTY, THEREFORE, THE PENA LTY MAY BE ITA NO.4358/M/08 A.Y:02-03 2 DELETED. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED ON RECORD THE COPY OF THE SAID ORDER OF THE TRIBUNAL. 3. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND TH AT THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT HAS ARRIVED AT THE CON CLUSION THAT THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION U/S.80 HHC IN RESPECT OF CERTAIN ITEMS AND ACCORDINGLY HE REDUCED THE DEDUCTION U /S.80HH FROM RS.8,48,291/- TO RS.2,99,044/-. ON APPEAL, THE LD. CIT(A) UPHELD THE ORDER PASSED BY THE ASSESSING OFFICER. IN THE MEANTIME THE ASSESSING OFFICER AFTER REJECTING THE ASSESSEE'S EXPLANATION THAT T HE ASSESSEE HAS DISCLOSED ALL THE MATERIAL FACTS IN THE RETURN OF IN COME AND ACCOMPANYING DOCUMENTS AND HENCE PENALTY IS NOT LEVIABLE, IMPOSED PENALTY U/S.271(1)(C) RS.2,43,105/-. WE FIND MERIT TH AT IN THE QUANTUM APPEAL (SUPRA), THE TRIBUNAL SET ASIDE THE ISS UE VIDE FINDING RECORDED IN PARA -4 OF ITS ORDER AS UNDER : 4. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS . THE LEARNED A.R. CONTENDED THAT THE ISSUE IN APPEAL IS COVERED BY THE DECISION OF THE JURISDICTIONAL ITAT, MUMBAI C BENCH, VIDE ORDER DATED 18.04.2006, IN ITA NO.141/MUM/2000, ASSESSMENT YEAR 1996-97, IN THE CASE OF S.M. ENERGY TEKNIK & ELECTRONIC LTD. VS. DC IT. IN THIS DECISION, THE TRIBUNAL CONSIDERED THE DECISION , IN THE CASE OF HINDUSTAN LEVER LTD. VS. IAC, RENDERED BY TH E BOMBAY BENCH, 58 ITD 555 (BOM), ALONG WITH OTHER DECISIONS. HOWEVER, IT WAS CONCEDED BY CONCERNED PARTIES THAT THIS DECISION WAS NOT CONSIDERED BY TH E ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R. THEREFORE IT IS EVIDENT THAT THE ASSESSING OFFICER AND LEARNED CIT(A) DID NOT HAVE THE BENEFIT OF THIS DEC ISION, FOR ITS APPLICATION AND APPRECIATION TO THE FACT-SI TUATION OF THE PRESENT CASE. THEREFORE, TO ENABLE THE ASSESS ING OFFICER TO CONSIDER THE SAID JUDGMENT, THE IMPUGNED APPELLATE ORDER PASSED BY THE LEARNED CIT(A) IS SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER, FOR FRESH ADJUDICATION IN THE LIGHT OF THE RELEVANT STATUTORY PROVISIONS AND THE RATIO OF THE SAID DECISION AFTER ITA NO.4358/M/08 A.Y:02-03 3 AFFORDING PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE. CONSEQUENTLY, THE IMPUGNED ORDER IS SET ASIDE. SINCE THE ADDITION ON WHICH PENALTY WAS IMPOSED HAS BEE N SET ASIDE BY THE TRIBUNAL (SUPRA), AND KEEPING IN VIEW THE RAT IO OF DECISION IN CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 IT R 158 (SC) WHEREIN IT HAS BEEN HELD (PAGE-159) .....A MERE MAK ING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AM OUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE . SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. , WE ARE OF THE VIEW THAT THE PENALTY I S NOT SUSTAINABLE IN LAW AND ACCORDINGLY WE ARE INCLINED TO UPHOLD THE OR DER OF THE LD. CIT(A) IN DELETING THE PENALTY IMPOSED BY THE ASSESSING OFFICER . THE GROUNDS TAKEN BY THE REVENUE ARE THEREFORE, REJECTED. 4. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.5.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 21.5.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. ITA NO.4358/M/08 A.Y:02-03 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 10.5/11.5 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 12.5 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 21.5.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 24.5.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER