GTL LTD, NAVI MUMBAI V. ACIT CEN CIR 9, MUMBAI

ITA 4785/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1609 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 08-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Reopening of assessment; Bogus purchase; Depreciation
• Section: 115JB; 274; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI RAJESH KUMAR (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 4785 /MUM/2018 ASSESSMENT Y EAR: 2004 - 05 & ITA NO. 4786 /MUM/2018 ASSESSMENT Y EAR: 2004 - 05 GTL LIMITED, 412, JANMABHOOMI CHAMBE RS, 29, WALCHAND HIRACHAND MARG, BALLARD ESTATE, MUMBAI - 400038 PAN: AAACG3742L VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 9, OLD CGO BUILDING, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANUJ KISNADWALA (AR) RE VENUE BY : SHRI T.S. KHALSA (D R) DATE OF HEARING: 23 /11 /2020 DATE OF PRONOUNCEMENT: 23 / 11 /2020 O R D E R PER RAM LAL NEGI, JM THESE APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE TWO ORDER S DATED 13.09.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 37 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2004 - 05 . VIDE FIRST ORDER THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL FILED AGAINST ASSESSMENT ORDER U/S 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AND VIDE SECOND ORDER THE LD. CIT (A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271 (1) (C) OF ACT. ITA NO. 4785/MUM/2018 (ASSESSMENT YEAR: 2004 - 05 ) T HE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUNDS : - 2 ITA NO. 4785 & 4786 / MUM/2018 ASSESSMENT YEAR: 2004 - 05 GROUND NO. 1 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PENALTY HAS BEEN INITIATED VIDE NOTICE U/S 274 WITHOUT ANY SPECIFIC CHARGE AND HENCE T HE NOTICE AND THE ORDER PASSED U/S 271 (1) (C) IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THE APPELLANT HUMBLY PRAYS THAT THE ASSESSING OFFICER BE DIRECTED TO DELETE THE PENALTY LEVIED U/S 271 (1) (C). WITHOUT PREJUDICE TO GROUND NO. 1 GROUND NO. I I: LEVY OF PENALTY ON ALLEGED BOGUS PURCHASES 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN UPHOLDING THE ACTION OF THE LD. AO BY LEVYING PENALTY ON ADDITIONS MADE TO INCOME COMPUTED U/S 115JB OF THE ACT ON ACCOUNT OF ALLE GED BOGUS PURCHASES. 2. THE APPELLANT HUMBLY PRAYS THAT THE ASSESSING OFFICER BE DIRECTED TO DELETE THE PENALTY LEVIED U/S 271 (1) (C). ITA NO. 4786/MUM/2018 (ASSESSMENT YEAR: 2004 - 05 ) THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUNDS : - GROUND NO. I: REOPENING OF ASSESSMENT UNDER SECTION 148 IS BAD IN LAW. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT (A) ERRED IN UPHOLDING THE ACTION OF THE LD. ASSESSING OFFICER (LD. AO) O F REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT BEYOND A PERIOD OF 4 YEARS. 2. THE APPELLANT PRAYS THAT THE AO BE DIRECTED THAT RE - OPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT IS VOID - AB - INITIO AND / OR OTHERWISE BAD - IN - LAW. WITHOUT PREJUDICE TO GROUND NO. I GROUND NO. II DISALLOWANCE OF DEPRECIATION ON PURPORTED BOGUS PURCHASES. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT (A) ERRED IN UPHOLDING THE ACTION OF THE LD. O 3 ITA NO. 4785 & 4786 / MUM/2018 ASSESSMENT YEAR: 2004 - 05 BY TREATING PURCHASE AND CAPITALIZATION OF SOFT WARE AS BOGUS IN NATURE AND DENYING DEPRECIATION ON THE SAME. 2. THE APPELLANT THEREFORE PRAYS THAT THE AO BE DIRECTED TO TREAT THE PURCHASE OF SOFTWARE AS GENUINE IN NATURE AND ALLOW DEPRECIATION ON THE SAME. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ASSESSEE WANTS TO WITHDRAW THE SAID APPEALS IN VIEW OF THE FACT THAT THE ASSESSEE HAS FILED COMPOUNDING APPLICATIONS BEFORE THE CONCERNED AUTHORITY AND THE SAME HAVE BEEN ACCEPTED. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE TH E SUBMISSIONS MADE BY THE LD. COUNSEL. HENCE, I N VIEW OF THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, WE ALLOW THE REQUEST MADE ON BEHALF OF THE ASSESSEE AND DISMISS THE APPEALS AS WITHDRAWN. IN THE RESULT, APPEAL S FILED BY THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED ON 23 RD NOVEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( RAJESH KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 23 / 1 1 /2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / T HE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / 4 ITA NO. 4785 & 4786 / MUM/2018 ASSESSMENT YEAR: 2004 - 05 DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI