TARUNA KATARIA, MUMBAI V. ITO 19(2)(2), MUMBAI

ITA 4894/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1787 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Assessee Lawyers: BHAVESH P SHAH
• Keywords: Set aside
• Section: 271(1)(c); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 4894/MUM/2018 ( ASSESSMENT YEARS: 2005-06 ) TARUNA KATARIA FLAT NO. 404, BULE HEAVEN CHS LTD., J.N. ROAD, VAKOLA, SANTACRUZ (E), MUMBAI. / VS. ITO 19(2)(2) MUMBAI. ./ ./ PAN/GIR NO. : ACGPK7391G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI BHAVESH P. SHAH / RESPONDENT BY : SHRI AMIT PRATAP SINGH, DR / DATE OF HEARING 20/10/2020 !'# / DATE OF PRONOUNCEMENT 21/10/2020 / O R D E R PER PAVAN KUMAR GADALE - JM: THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI PASSED U/S 271(1)(C) AND 250 O F THE INCOME TAX ACT, 1961. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO .4894 /MUM/2018 TARUNA KATARIA, MUMBAI. - 2 - 1.A THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT OF RS. 5,58,990/- AS UNEXPLAIN ED INVESTMENTS. B. THE LD. CIT (A) FAILED TO APPRECIATE THAT APPEL LANT HAS SUBMITTED FULL DETAILS OF LONG TERM CAPITAL GAI N I.E. SALES BILLS, DEMAT STATEMENTS, BROKER NOTES, PURCHA SE BILLS ETC. C. THE LD. CIT(A) OUGHT TO HAVE APPRECIATE THAT APPELLANT HAS FILED APPEAL BEFORE ITAT AND PARTLY H EARING COMPLETED, HENCE QUANTUM IS STILL NOT FIXED. D. THE LD. CIT(A) OUGHT TO HAVE APPRECIATE THAT APPELLANT HAS FILED APPEAL BEFORE ITAT AND PARTLY H EARING COMPLETED, HENCE QUANTUM IS STILL NOT FIXED. 2. THE LD. CIT(A) NOT CONSIDERING THAT A.O HAS NOT GIVEN OPPORTUNITY TO THE APPELLANT BEFORE LEVYING T HE PENALTY. 3. THE LEARNED RESERVE THE RIGHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 2. AT THE TIME OF HEARING, THE LDAR SUBMITTED THAT THE QUANTUM APPEAL FOR THE SAID ASSESSMENT YEAR WAS ALLOWED BY THE HONBLE TRIBUNAL IN ITA NO. 584/MUM/2013 VIDE ORDER DATED 05.09.2019 AND REFERRED TO THE COPY OF ITAT ORDER. HENCE, THE PEN ALTY LEVIED SHALL NOT BE SUSTAINED. CONTRA, THE LD. DR ACCEPTED THE FACT OF RELIEF ALLOWED TO THE ASSESSEE BY THE HONBLE TRIBUNAL. ITA NO .4894 /MUM/2018 TARUNA KATARIA, MUMBAI. - 3 - 4. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE FACTS AS ENVISAGED BY THE LD AR AND SUPPORTED BY THE ORDER O F THE HONBLE TRIBUNAL DATED 05.09.2019 IN ALLOWING T HE QUANTUM APPEAL OF THE ASSESSEE. THE PENALTY LEVIED BY THE A.O AND CONFIRMED BY THE CIT(A) CANNOT BE SUSTAINED. ACCORDINGLY, WE SET ASIDE THE ORDER OF T HE CIT(A) AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.10.2020 SD/- SD/- (RAJESH KUMAR) (PAVAN KUMAR GADALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 21/10/2020 KRK, PS ITA NO .4894 /MUM/2018 TARUNA KATARIA, MUMBAI. - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '(# , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI