TECHNOWELD, MUMBAI V. ACIT, -20(3), MUMBAI

ITA 500/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0665 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 10-04-2017
• Assessment Year: 1999-2000
• Appeal Filed On: 21-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Question of law
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.500/M/2014 ASSESSMENT YEAR: 1999-2000 M/S. TECHNOWELD, 1-28, MITTAL ESTATE, ANDHERI KURLA ROAD, MAROL, ANDHERI (E), MUMBAI 400 059 PAN: AAAFT2273Q VS. THE ASST. COMMISSIONER OF INCOME TAX 20(3), ROOM NO.506, 5 TH FLOOR, PIRAMAL CHAMBERS, JIJEEBHAI LANE, NR. MORARJI MILLS, PAREL, MUMBAI 400012 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SANJIV M. SHAH, A.R. REVENUE BY : MISS ANUPAMA SINGLA, D.R. DATE OF HEARING : 10.04.2017 DATE OF PRONOUNCEMENT : 12.05.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 08.02.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 1999-2000. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSE E FIRM HAS FILED THE RETURN FOR A.Y. 1999-2000 ON 30.12.1999. THE CASE WAS TAK EN FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED AND ADDITION OF RS.1,68,06 ,440/- WAS MADE UNDER SECTION 68 OF THE INCOME TAX ACT. THE MATTER WENT TO THE TRIBUNAL AND THE TRIBUNAL HAS PARTLY ALLOWED THE APPEAL AND CONFIRME D THE ADDITION OF RS.1,68,06,440/-. THEREFORE, THE PENALTY HAS BEEN LEVIED FOR THE ADDITION OF RS.1,68,06,440/-. DURING THE COURSE OF HEARING, TH E L.D. A.R. SUBMITTED THAT THE ADDITION CONFIRMED BY THE TRIBUNAL IS CHALLENGE D BEFORE HONBLE HIGH ITA NO.500/M/2014 M/S. TECHNOWELD 2 COURT AND HONBLE HIGH COURT HAS ADMITTED THE APPEA L OF THE ASSESSEE IN INCOME TAX APPEAL NO.2034 OF 2012. HE FURTHER SUBM ITTED THAT THE HONBLE BOMBAY HIGH COURT HAS ADMITTED THE SUBSTANTIAL QUES TION OF LAW ON THE ADDITION MADE BY THE TRIBUNAL, THEREFORE THIS ADDIT ION IS CERTAINLY DEBATABLE. HE FURTHER SUBMITTED THAT IN THIS CIRCUMSTANCES THE PENALTY CANNOT BE LEVIED AS HELD IN VARIOUS JUDGMENTS OF HONBLE DELHI HIGH COU RT, HONBLE BOMBAY HIGH COURT AND HONBLE KARNATAKA HIGH COURT INCLUDI NG RUPAM MERCANTILE VS. DCIT (2004) 91 ITD 237 AND SMT. RAMILA RATILAL SHAH VS. ACIT (1998) 60 TTJ (AHD) 171, THEREFORE, PENALTY MAY BE DELETED. LD. A.R. FURTHER SUBMITTED THAT SIMPLY BY ADMISSION OF ADDITION, IF THE ADDITI ON IS CONFIRMED BY THE HONBLE HIGH COURT, ASSESSEE MUST BE GIVEN LIBERTY TO RAISE THE LEGAL OBJECTION BEFORE THE AUTHORITIES. 3. THE LD. D.R. RELIED UPON THE ORDER OF THE REVENU E AUTHORITIES. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT I N THIS CASE THE ADDITION HAS BEEN CONFIRMED BY THE TRIBUNAL AND ASSESSEE IS BEFO RE HONBLE HIGH COURT AND HONBLE HIGH COURT HAS ADMITTED THE QUESTION OF LAW BY OBSERVING AS UNDER: A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE RESPONDE NT IS CORRECT IN MAKING THE ADDITION RS.1,68,06,442/- UNDER SECTION 68 IN THE R EGULAR ASSESSMENT? B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN BRINGING THE ENTIRE GROSS P ROCEEDS RS.1,68,06,442/- TO TAX WHEN IT OUGHT TO HAVE CIRCUMSCRIBED THE IMPU GNED ADDITION TO THE EXTENT OF THE PROFITS EARNED BY THE APPELLANT ON TH E SAME? WHEN THE SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMIT TED BY HIGH COURT ON ADDITION, IT BECOMES APPARENT THAT ADDITION IS C ERTAINLY DEBATABLE. IN SUCH CIRCUMSTANCES PENALTY CANNOT BE LEVIED. THEREFORE, FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. ADITYA BIRLA POWER CO. LTD. IN ITA NO.851 OF 2014, WE DELE TE THE PENALTY. ITA NO.500/M/2014 M/S. TECHNOWELD 3 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 12.05.2017. SD/- SD/- (MANOJ KUMAR AGGARWAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 12.05.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.