ASST CIT 16(2), MUMBAI V. K.S AIYAR & CO, MUMBAI

ITA 4961/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2437 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Keywords: Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER& SHRI AMARJIT SINGH, JUDICIAL MEMBER. ITA NO. 4961 /MUM/2015 (ASSESSMENT YEAR : 2009-10) THE ACIT, CIR.16(2), ROOM NO.440, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI - 400020 ... APPELLA NT VS. SHRI K.S.AIYAR & CO., F-7,LAXMI MILL COMPOUND, OFF.DR.E.MEMBER OF STOCK EXCHANGE ROAD, MUMBAI 400 011 PAN:AAAFK 6843P .... RESPONDENT APPELLANT BY : SHRI A.K.KARDAM RESPONDENT BY : SHRI RAVIKANT PATHAK DATE OF HEARING : 19/07/2016 DATE OF PRONOUNCEMENT : 22/07/2016 PER G.S.PANNU, A.M: ORDER THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAININ G TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORD ER PASSED BY CIT(A)- 5, MUMBAI DATED 10/07/2015 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1 )(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 27/03/201 4. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL:- 2 ITA NO. 4961 /MUM/2015 (ASSESSMENT YEAR : 2009-10) 1. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING PENALTY LEVIED UNDER SECTION 271 (1) (C) OF THE INCOME TAX ACT AMOUNTING TO RS. 13,00,000/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE LD. CIT (A) IS PERVERSE IN AS MUCH AS THE CIT (A) HAS N OT TAKEN INTO CONSIDERATION THE FACT THAT SUBSTANTIAL QUESTION OF LAW ON THE ISSUE OF DISALLOWANCES IN RESPECT OF WHICH PENALTY WAS LE VIED IS PENDING BEFORE THE HIGH COURT. 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE R ESTORED. 3. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT THE RES PONDENT ASSESSEE IS A PARTNERSHIP FIRM OF CHARTERED ACCOUNTANTS. IN THE ASSESSMENT FINALIZED UNDER SECTION 143(3) OF THE ACT DATED 9/1 2/2011, THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.38,69,908/- TO T HE RETURNED INCOME. THE SAID AMOUNT REPRESENTED PAYMENT MADE TO LEGAL H EIR OF DECEASED PARTNER, WHICH WAS CLAIMED AS DEDUCTIBLE WHILE COMP UTING THE TOTAL TAXABLE INCOME. THE ASSESSING OFFICER, BY FOLLOWIN G HIS STAND FOR THE EARLIER ASSESSMENT YEARS, DISALLOWED THE DEDUCTION. SUBSEQUENTLY, THE ASSESSING OFFICER ALSO LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT WITH RESPECT TO TAX SOUGHT TO BE EVADED ON SUCH INC OME, AND SUCH PENALTY AMOUNTED TO RS.13.00 LACS. THE PENALTY IM POSED HAS SINCE BEEN DELETED BY THE CIT(A), PRIMARILY ON THE GROUND THAT THE TRIBUNAL IN ASSESSEES CASE FOR THE INSTANT ASSESSMENT YEAR VID E ITA NO.283/MUM/2013 DATED 28/03/2014 HAS DELETED THE DI SALLOWANCE ITSELF. AGAINST SUCH A DECISION OF THE CIT(A), REV ENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE ORDER OF THE TRIBUNAL DATED 28/03/2014 (SUPRA) CONT INUES TO HOLD THE 3 ITA NO. 4961 /MUM/2015 (ASSESSMENT YEAR : 2009-10) FIELD AND, THEREFORE, NO ERROR CAN BE FOUND IN THE ORDER OF THE CIT(A) DELETING THE PENALTY IMPOSED UNDER SECTION 271(1)(C ) OF THE ACT AS THE ADDITION MADE BY THE ASSESSING OFFICER ITSELF DOES NOT SURVIVE THUS, ON THIS ASPECT, THE ORDER OF THE CIT(A) IS AFFIRMED A ND REVENUE FAIL IN ITS APPEAL. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/07/2016 SD/- SD/- (AMARJIT SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOU NTANT MEMBER MUMBAI, DATED 22/07/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI