ACIT 4(2), MUMBAI V. FIRST FLIGHT COURIERS LTD, MUMBAI

ITA 4854/MUM/2010

• Counselvise Citation: 485419914 RSA 2010
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER. I.T.A. NO.4854/MUM/2010. ASSESS MENT YEAR : 2006-07 ASSTT. COMMISSIONER OF INCOME-TAX, M/S FIRST FLIGHT COURIRS LTD., CIRCLE-4(2), MUMBAI. VS. 505, COTTON EXCHANGE BUILDING, K.D. ROAD, MUMBAI 400 002. PAN AAACF 0841R APPELLANT. RESPONDENT. APPELLANT BY : SHRI T .T. JACOB. RESPON DENT BY : NONE. O R D E R. PER P.M. JAGTAP, A.M. : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LEARNED CIT(APPEALS)-8, DATED 19-03-2010 WHEREBY HE CANCELL ED THE PENALTY OF RS.6,10,141/- IMPOSED BY THE AO U/S 271(1)(C). 2. AT THE TIME OF HEARING FIXED IN THIS CASE ON 21- 06-2011, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE REVEN UE IS, THEREFORE, BEING DISPOSED OF EXPARTE QUA THE RESPONDENT ASSESSEE AFTER HEARIN G THE ARGUMENTS OF THE LEARNED DR AND PERUSING THE RELEVANT MATERIAL ON RECORD. 3. IT IS OBSERVED THAT PENALTY U/S 271(1)(C) IMPOSE D BY THE AO IN RESPECT OF ADDITION MADE ON ACCOUNT OF BELATED PAYMENT OF EMPL OYEES CONTRIBUTION TOWARDS ESIC/PF HAS BEEN CANCELLED BY THE LEARNED CIT(APPEA LS) VIDE HIS IMPUGNED ORDER 2 ITA NO.4854/MUM/2010 ASSESSMENT YEAR:2006-07. ON THE GROUND THAT A SIMILAR ADDITION MADE IN ASSES SEES OWN CASE IN THE EARLIER YEARS WAS DELETED IN APPEAL. ALTHOUGH NO APPEAL WAS FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION DISPUTING THE ADDITION MAD E ON ACCOUNT OF BELATED PAYMENT OF ESIC/PF, THE LEARNED CIT(APPEALS) HELD T HAT GOING BY THE DECISION OF THE TRIBUNAL DELETING THE SIMILAR ADDITION IN EARLI ER YEARS, THE ISSUE WAS DEBATABLE ON WHICH TWO OPINIONS WERE POSSIBLE. HE, THEREFORE, CANCELLED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) HOLDING THAT NO SUCH PENAL TY IS ATTRACTED IN RESPECT OF ADDITION MADE ON A DEBATABLE ISSUE. AT THE TIME OF HEARING BEFORE US, EVEN THE LEARNED DR HAS NOT BEEN ABLE TO DISPUTE THE POSITIO N THAT THE ISSUE RELATING TO ADDITION MADE ON ACCOUNT OF BELATED PAYMENT OF EMPL OYEES CONTRIBUTION TOWARDS ESIC/PF IS A HIGHLY DEBATABLE ISSUE ON WHICH DIFFER ENT VIEWS ARE POSSIBLE. THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF B ELATED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS ESIC/PF THUS WAS BASED ON A PO SSIBLE VIEW OF THE MATTER AND DISALLOWANCE OF SUCH DEDUCTION CLAIMED BY THE ASSES SEE, IN OUR OPINION, CANNOT ATTRACT THE PENAL PROVISIONS OF SECTION 271(1)(C) A S RIGHTLY HELD BY THE LEARNED CIT(APPEALS). WE, THEREFORE, UPHOLD THE IMPUGNED OR DER OF THE LEARNED CIT(APPEALS) CANCELLING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AND DISMISS THIS APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF JUNE, 2011. SD/- SD/- (ASHA VIJAYRAGHAVAN) (P.M. JA GTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 30 TH JUNE, 2011. WAKODE 3 ITA NO.4854/MUM/2010 ASSESSMENT YEAR:2006-07. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, F-BENCH. (TRUE COPY) BY ORD ER ASSTT. R EGISTRAR, ITAT, MUMBAI BEN CHES, MUMBA I.