MR. KAILASH P SHAH (HUF), Mumbai V. ITO WARD 26 (1)(2), Mumbai

ITA 4617/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3637 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: CHETAN P PABARI
• Section: 271(1)(c); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO . 4617 / MUM . /2019 ( ASSESSMENT YEAR : 2008 09 ) SHRI KAILASH P. SHAH (HUF) PUSHPA CHOWK, DAFTARY ROAD MALAD (EAST), MUMBAI 400 097 PAN AAGHK2158B . APPELLANT V/S INCOME TAX OFFICER WARD 26(1)(2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI CHETAN P. PABARI REVENUE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 19 .0 8 .2019 DATE OF ORDER 11.11.2019 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 9 TH MAY 2019, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 41, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2008 09. 2. THE GROUND RAISED IS THAT THE LEARNED CIT(A) HAS ERRED IN NOT ADJUDICATING THE IN THE ADDITIONAL GROUND RAIS ED BEFORE HIM. 3. IN THIS CASE, THE ASSESSEE HAS FILED APPEAL BEFORE THE LEARNED CIT(A) AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT 2 SHRI KAILASH P. SHAH (HUF) ON BOGUS LONG TERM CAPITAL GAIN EARNED THROUGH MUKESH CHOKSEY GROUP CONCERN. 4. THE LEARNED CIT(A) HAS CONFI RMED THE LEVY OF PENALTY ON THE GROUNDS RAISED BEFORE HIM. HOWEVER, THE ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUND : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE PENALTY PROCEEDINGS INITIATED IN TERMS OF NOTICE U/S 274 READ WITH SECTION 271 OF THE INCOME TAX ACT, 1961 DATED 08.01.2014 IS BAD IN LAW INASMUCH THE SAID NOTICE DOES NOT SPECIFY FOR WHICH LIMB OF SECTION 271(1)(C) PENALTY PROCEEDINGS HAD BEEN INITIATED, AND CONSEQUENTLY, THE IMPUGNED PENALTY ORDER IS ALSO BAD IN LAW. THE APPELLANT, THEREFORE, PRAYS THAT THE IMPUGNED PENALTY ORDER BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE IMPUGNED PENALTY ORDER IS BAD IN LAW INSOMUCH AS THE LD. ASSESSING OFFICER FINALLY IMPOSED PENALTY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WHEREAS THE CHARGE MADE OUT AGAINST THE APPELLANT IN THE RELEVANT ASSESSMENT ORDER WAS FOR BOTH CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING PARTICULARS OF SUCH INCOME. THE APPELLANT, THEREFORE, PRA YS THAT THE IMPUGNED PENALTY ORDER BE QUASHED. 5. H OWEVER , THE LEARNED CIT(A) THOUGH HAS MENTIONED THAT THE ABOVE GROUND BEING LEGAL ARE ADMITTED, HE HAS NOT ADJUDICATED UPON THE SAME. HENCE , IN THE INTEREST OF JUSTICE , I REMIT THE ADDITIONAL GROUND S RAISE D TO THE FILE OF THE LEARNED CIT(A) WHO SHALL ADJUDICATE THE ADDITIONAL GROUND S RAISED BEFORE HIM . I ALSO MAKE IT CLEAR THAT THE ASSESSEE HAS NOT RAISED ANY GROUND ON THE MERITS OF THE CONFIRMATION OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT . HEN CE , THE 3 SHRI KAILASH P. SHAH (HUF) LEARNED CIT(A) SHALL ONLY CONFINE TO HIS DECISION TO THE ADDITIONAL ISSUE GROUND S RAISED . 6. I N THE RESULT , APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 11.11.2019 SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER MUMBAI, DATED: 11.11.2019 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI