M/S. SUNDIAL CREATIVE MEDIA P.LTD., MUMBAI V. ITO 13(2)(4) OLD -ITO 9(3)(4), MUMBAI

ITA 4982/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4276 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 20-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: R N VASANIV H VASANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI R.C. SHARMA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 4982 /MUM/2017 ASSESSMENT Y EAR: 2007 - 08 M/S SUNDIAL CREATIVE MEDIA PVT. LTD., C/O OSOURCE INDIA PVT. LTD., UNIT 4, B WING, 5 TH FLOOR, PHOENIX HOUSE, 462, SENAPATI BAPAT MARG, MUMBAI PAN: AAJCS3986K VS. THE ITO 13(2)(4) OLD - 9(3)(4), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N. VASANI/V.H. VASANI (A R) REVENUE BY : SH RI CHAUDHARY ARUNKUMAR SINGH (D R) DATE OF HEARING: 22/10 /201 8 DATE OF PRONOUNCEMENT: 26 / 10 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDE R DATED 26.05.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 21 (FOR SHORT THE CIT ( A) , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2007 - 08 , WHEREBY THE LD. CIT ( A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED BY AO U /S 271 (1)(C) ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. IN THE PRESENT CASE, AO COMPLETED THE ASSESSMENT U/S 143 (3) OF THE ACT , MAKING ADDITION OF RS. 17,81,896/ - . THE ADDITION WAS CONFIRMED IN THE FIRST APPEAL. ACCORDINGLY, AO INITIATED PE NALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND IMPOSED PENALTY OF RS. 11,00,000/ - FOR CONCEALMENT OF INCOME. THE LD. CIT(A) CONFIRMED THE PENALTY IN THE FIRST APPEAL. AGAINST THE SAID ORDER THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL. 2 ITA NO. 4982/ MUM/2017 ASSESSMENT YEAR: 2007 - 08 3 . T HE ASSESSEE HAS PR EFERRED THE PRESENT APPEAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 21, COMMITTED A GROSS ERROR OF LAW AND FACTS IN CONFIRMING THE PENALTY OF RS. 11,00,000/ - AT 187% OF TAX U/S 271 (1) (C) IMPOSED BY THE ITO 9( 3)(4). 2. HE ERRED IN STATING THAT THE APPELLANT HAS NOT BEEN ABLE TO SUBSTANTIATE ITS EXPLANATION BY FILING NECESSARY EVIDENCE WHEREAS ALL THE NECESSARY EVIDENCE AND EXPLANATION AVAILABLE WITH THE APPELLANT WERE DULY FILED IN THE COURSE OF ASSESSMENT AND AP PELLATE PROCEEDINGS. 3. HE FAILED TO APPRECIATE THE FACTS THAT THE APPELLANT COMPANY DID FILE A REPLY IN RESPONSE TO THE SHOW CAUSE NOTICE U/S 271 (1) (C) ON 27.01.2010. 4. HE FAILED TO PROPERLY EVALUATE THE JUDICIAL PRONOUNCEMENTS CITED IN THE COURSE OF APPEL LATE PROCEEDINGS. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE PRESENT CASE, THE ITAT HAS SET ASIDE THE QUANTUM APPEAL TO THE FILE OF AO FOR DECIDING THE ISSUE PERTAINING TO THE ADDITIONS CONFIRMED BY THE LD. CIT (A) AFRESH . S INCE, THE QUANTUM APPEAL HAS BEEN SET ASIDE, THE IMPUGNED ORDER PASSED BY THE LD.CIT (A) DOES NOT SURVIVE. THE DEPARTMENTAL REPRESENTATIVE (DR) DID NOT CONTROVERT THE FACTS STATED BY THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE GONE THROUGH THE ORDERS PASS ED BY THE AUTHORITIES BELOW AS WELL AS THE ORDER PASSED BY THE COORDINATE BENCH IN THE QUANTUM APPEAL. IN THE QUANTUM APPEAL, THE ASSESSEE CONTENDED BEFORE THE TRIBUNAL THAT DURING THE RELEVANT YEAR , T HE ASSESSEE COMPANY RECEIVED RS. 50,00,000/ - FROM M/S GROUP M MEDIA PVT. LTD. THE ASSESSEE COMPANY WAS ENTITLED TO RECEIVE RS. 2.5 LACS PER MONTH INCLUDING SERVICE TAX AND ACCORDINGLY RS. 30,00,000/ - INCLUDING SERVICE TAX FROM THE SAID COMPANY . HOWEVER, M/S GROUP M MEDIA INDIA LTD. 3 ITA NO. 4982/ MUM/2017 ASSESSMENT YEAR: 2007 - 08 ISSUED TDS CERTIFICATE FOR THE TOTAL AMOUNT OF RS. 50,00,000/ - ON THE BASIS OF PAYMENT MADE TO THE ASSESSEE . THE REMAINING AMOUNT OF RS. 20,00,000/ - WAS ACCOUNTED IN THE INCOME OF THE ASSESSEE IN THE ASSESSMENT YEAR 2008 - 09. IN VIEW OF THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSE SSEE, THE MATTER WAS RESTORED TO THE FILE OF AO FOR DECIDING THE ISSUE AFRESH AFTER VERIFYING THE FACTS AS TO WHETHER THE BALANCE AMOUNT WAS OFFERED BY THE ASSESSEE IN THE SUBSEQUENT YEARS IN TERMS OF ITS AGREEMENT HAVING BEEN ENTERED INTO WITH M/S GROUP M MEDIA LTD. 6. SINCE, THE COORDINATE BENCH HAS SET ASIDE THE QUANTUM APPEAL, ON THE BASIS OF WHICH THE PENALTY ORDER HAS BEEN PASSED, TO THE FILE OF AO FOR PASSING THE ASSESSMENT ORDER AFRESH IN THE LIGHT OF THE CONTENTION OF THE ASSESSEE, THE IMPUGNED OR DER DOES NOT SURVIVE. WE ACCORDINGLY SET ASIDE THE SAME TO THE FILE OF AO TO PASS THE PENALTY ORDER AFRESH, IF NEEDED AFTER COMPLETION OF ASSESSMENT. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 2008 IS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER, 2018. SD/ - SD/ - ( R.C. SHARMA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI ; DATED: 26 / 10 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 4 ITA NO. 4982/ MUM/2017 ASSESSMENT YEAR: 2007 - 08 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY/ / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI