AJIT DAYAL LALVANI, MUMBAI V. ITO WARD 8(2)(2), MUMBAI

ITA 4692/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9140 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 02-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4692/MUM/2018 (ASSESSMENT YEAR: 2005-06) SHRI AJIT DAYAL LALVA N I 3, GAZDAR HOUSE 45 BHULABHAI DESAI ROAD MUMBAI 400026 VS. DCIT, RANGE 8(2)(2) MUMBAI PAN ABBPL4560C APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI MICHAEL JERALD DATE OF HEARING: 31.07.2020 DATE OF PRONOUNCEMENT: 06.08.2020 O R D E R PER SHAMIM YAHYA, AM BY WAY OF THIS APPEAL THE ASSESSEE THE ASSESSEE HAS RAISED FOLLOWING GROUND: - THE ASSESSING OFFICER ERRED IN DENYING THE ASSESSE E LEGITIMATE CLAIM AS ALLOWED IN INCOME TAX APPELLATE TRIBUNAL A BEN CH ORDER BEFORE LEVYING TAX AND PENALTY. PLEA : WE THEREFORE REQUEST THE HONOURABLE TRIBUNAL TO ASK THE ASSESSING OFFICER TO RECTIFY THE SAME AND ISSUE FRESH ORDER. 2. THE ASSESSEE HAS SUBMITTED FOLLOWING APPLICATION FO R CONDONATION: BEFORE THE INCOME TAX APPELLATE TRIBUNAL AT IN THE MATTER OF AJIT DAYAL LALVANI ASSESSMENT YEAR- 2005-06 I, AJIT LALVANI, AGED ABOUT 70 YEARS, SON OF SHRI D AYAL LALVANI, RESIDENT OF 3, GAZDAR HOUSE, 45, BHULABHAI DESAI RO AD, MUMBAI - 400026: DO SOLEMNLY AFFIRM AND STATE AS UNDER: ITA NO. 4692/MUM/2018 SHRI AJIT DAYAL LALVAI 2 1. THAT I AM THE ASSESSEE, AND AS SUCH WELL CONVE RSANT WITH THE FACTS DEPOSED TO BELOW. 2. THAT THE APPEAL FILED BY THE ASSESSEE- BEFORE THE ASSESSING OFFICER WAS DISPOSED OFBY ORDER DATED 29/05/2019 PA SSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI AND RE CEIVED BY US ON 24/06/2019. 3. THAT THE TIME FOR RECTIFYING OF THE APPEAL BEF ORE THIS COMMISSIONER APPEAL WAS TO EXPIRE ON 08/06/2019. 4. WE REGRET THE DELAY IN RECTIFYING THE APPEAL A S I WAS OUT OF STATION & RECEIVED THE ORDER LATE BY 1 MONTH. WE RE QUEST YOU TO' CONSIDER THE DELAY SYMPATHETICALLY AND CONDONE THE DELAY IN RECTIFYING THE APPEAL. I AJIT LALVANI, THE ABOVE NAMED DEPONENT, DO HEREBY VERIFY THAT THE CONTENTS OF PARAS 1 TO 4 ARE TRUE TO THE BEST OF MY KNOWLEDGE AND NOTHING MATERIAL HAS BEEN CONCEALED AND NO PART OF IT IS FALSE. SIGNED AND VERIFIED AT MUMBAI ON 4TH DAY OF JULY 2019. DATE: 04/07/2019 DEPONENT 3. IN THIS CASE THE ASSESSEE HAS FILED APPEAL PURSUANT TO THE PENALTY ORDER DATED 28.06.2018 LEVYING PENALTY OF ` 3,63,543/-. THERE IS NO ORDER OF THE LEARNED CIT(A) IN THE APPEAL FOLDER. FROM THE F ACTS OF THE CASE AS NARRATED ABOVE IT IS AMPLY CLEAR THAT IN ASSESSEES QUANTUM APPEAL ITAT HAD GRANTED RELIEF VIDE ORDER DATED 12.08.2016 PURS UANT TO ASSESSEES APPEAL AGAINST THE CIT(A) ORDER ON THE MERITS OF TH E CASE. NOW THE ASSESSEE SUBMITS THAT ASSESSING OFFICER HAS LEVIED PENALTY W ITHOUT CONSIDERING THE ORDER OF THE ITAT WHEREIN THE ADDITION HAVE BEEN DE LETED. SINCE THE APPEAL BY THE ASSESSEE DID NOT CONTAIN THE ORDER OF CIT(A) ON THE ISSUE OF PENALTY, AFTER THE INITIAL HEARING THIS APPEAL WAS FIXED SEV ERAL TIMES. HOWEVER NONE APPEARED FOR THE ASSESSEE. LEARNED DEPARTMENTAL REP RESENTATIVE ALSO COULD NOT PROVIDE ANY ORDER OF CIT(A) ON THIS ISSUE . 4. HOWEVER FROM THE PERUSAL OF THE CONDONATION APPLICA TION IT TRANSPIRES THAT THERE IS AN ORDER OF THE LEARNED CIT(A) DATED 29.05.2019. THOUGH NO ORDER OF LEARNED CIT(A) ON THE ISSUE OF PENALTY IS AVAILABLE IN THE APPEAL FOLDER, IT APPEARS THAT ASSESSEE IS AGGRIEVED BY TH E ORDER OF LEARNED CIT(A) ON THIS ISSUE. BE AS IT MAY, SINCE THE ITAT HAS GRA NTED RELIEF IN THE MERITS ITA NO. 4692/MUM/2018 SHRI AJIT DAYAL LALVAI 3 OF THE CASE ON ADDITION AND DELETED THE ADDITION, I N OUR CONSIDERED OPINION INTEREST OF JUSTICE WILL BE SERVED IF THE ISSUE PRE SENT HERE IS PUT TO THE REMIT OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE LEARNED CIT(A)S ORDER IN THIS CASE. THEREAFTER THE AO SHALL TAKE INTO ACCOUNT THE ORDER OF THE ITAT ON MERITS OF THE CASE WERE ITAT HAS DELETED THE ADDITION AND GIVE DUE EFFECT. 5. ACCORDINGLY THIS APPEAL STANDS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED UNDER RULE 34(4) OF THE ITAT RULES ON 6 TH AUGUST, 2020. SD/ - (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATED: 6 TH AUGUST, 2020 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -CONCERNED, MUMBAI 4. THE CIT - CONCERNED, MUMBAI 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.