ITO 17(3)(1), MUMBAI V. CHANDANMAL JAIN (PROP. M.S, NUTAN JEWELLERS), MUMBAI

ITA 4563/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2192 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 05-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Assessee Lawyers: G S PIKALE
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C : MUMBAI BEFORE SHRI D. MANMOHAN, HON BLE VICE PRESIDENT AND SHRI R.K.PANDA , ACCOUNTANT MEMBER ITA. NO. 4563 /MUM/ 2009 ASSESSMENT YEAR 1998 - 1999 ITO - 17 (3) (1) MUMBAI 400 0 12. VS. SHRI CHANDAN MAL JAIN PROP. M/S. NUTAN JEWELLERS MUMBAI - 012 PAN AABPJ - 2763 - J (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI KESHAV SAXENA (DR) FOR RESPONDENT : SHRI G.S. PIKALE (AR) ORDER PER D. MANMOHAN, V.P. 1. O NLY GRO UND URGED IN THE APPEAL FILED BY THE REVENUE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) DELETED THE PENALTY LEVIED U/S. 271 (1) (C) WITHOUT APPRECIATING THE FACT THAT THE TAXES ON INCOME DECLARED UN DER VDIS - 1997 HAVE NOT BEEN PAID. 2. FACTS NECESSARY FOR THE DISPOSAL OF THE APPEAL ARE STATED IN BRIEF. ASSESSEE MADE A DECLARATION UNDER VDIS - 1997 TO THE TUNE OF RS.15,66,903/ - BUT FAILED TO PAY TAXES ON SUCH DECLARATION. THEREFORE, THE ASSESSING OFFI CER ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO BRING TO TAX THE INCOME DECLARED UNDER VDIS, AS UNDISCLOSED / CONCEALED INCOME FOR THE ASSESSMENT YEAR 1998 - 99. CONSEQUENT TO THE ASSESSMENT MADE BY THE ASSESSING OFFICER, PENALTY WAS LEVIED UNDER SECTION 271 (1) (C) OF THE ACT. 2 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IT WAS CONTENDED THAT THE ADDITION, WHICH IS THE BASIS FOR LEVY OF PENALTY, WAS DELETED BY THE ITAT (ITA. NO. 2226/M/2007 DATED 18 TH FEB. 2009) AND HENCE THERE IS NO CASE FOR LEVY OF PENALTY. UNDER THESE CIRCUMSTANCES LEARNED CIT(A) CANCELLED THE PENALTY BY OBSERVING AS UNDER : I HAVE GONE THROUGH THE FACTS AND THE ORDER OF THE HON BLE ITAT, C - BENCH, MUMBAI AND NOTED THAT THE HON BLE ITAT HAS ALLOWED THE QUANTUM APPEAL O F THE APPELLANT BY DELETING ADDITION OF RS.15,66,903/ - ON WHICH THE ASSESSING OFFICER HAD IMPOSED PENALTY U/S. 271 (1)(C) OF THE I.T. ACT. IN VIEW OF THE DELETION OF THE ENTIRE ADDITION, THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER DOES NOT STAND AND LIABLE TO BE CANCELLED. ACCORDINGLY, THE ORDER OF THE ASSESSING OFFICER IMPOSING PENALTY U/S. 271 (1) (C) OF THE I.T. ACT IS CANCELLED. 4. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. EXCEPT RELYING UPON THE ORDER OF THE ASSESSING OFFICER AND THE GROUND U RGED BEFORE US (WHICH IN ITSELF IS NOT CLEAR) THE LEARNED DR WAS UNABLE TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(A) IN THE PENALTY APPEAL AS WELL AS THE ORDER OF THE ITAT IN QUANTUM APPEAL. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN T HE ORDER PASSED BY THE LEARNED CIT(A) AND THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT, ON THIS THE 20 TH DAY OF APRIL, 2010. SD/ - SD/ - (R.K.PANDA ) ( D MANMOHAN ) ACCOUNTANT MEMB ER VICE PRESIDENT MUMBAI : D ATED: 20 TH APRIL, 2010 VBP/ - 3 COPY FORWARDED TO: 1 ITO - 17 (3) (1), R.NO. 621, 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 0 12. 2 SHRI CHANDANMAL JAIN, PROP. M/S. NUTAN JEWELLERS, 404, SHATRUNJAY BUILDING, 65, DR. AMB EDKAR ROAD, MUMBAI - 012 PAN AABPJ - 2763 - J 3 CIT (A) - XXVII, MUMBAI . 4 CIT , CITY - 17, MUMBAI. 5 DR C BENCH 6. GUARD FILE /TRUE COPY/ BY ORDER A SSISTANT R EGISTRAR , ITAT, MUMBAI