JASWANT H. BHATIA, MUMBAI V. ACIT, -19(3), MUMBAI

ITA 502/MUM/2014

• Counselvise Citation: 50219914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 21-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: BHARAT PATEL
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE S/SHRI I.P. BANSAL, (JM) AND B.R.BASKARAN (AM) . . , . . , ./ I.T .A. NO . 502 /MUM/20 1 4 ( / ASSESSMENT YEAR : 200 6 - 07 ) MR. JASWANT H BHATIA, 61 - A , MITTAL TOWERS, NARIMAN POINT, MUMBAI - 400005 / VS. ASSTT COMMISSIONER OF INCOME TAX 1 9 ( 3 ) , ROOM NO. 305, 3 RD FLOOR, PIRAMAL CHAMBERS, MUMBAI - 400012. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AA C P B0225E / : APPELLANT BY: SHRI BHARAT PATEL / RE SPONDENT BY : SHRI LOVE KUMAR / DATE OF HEARING : 29.6. 2015 / DATE OF PRONOUNCEMENT : 29.6. 2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 28.11.2013 PASSED BY THE LD.CIT(A) - 3 0 , MUMBAI CONFIRMING THE PENALTY OF RS.26,27,600/ - LEVIED BY THE AO U/S 271(1)( C ) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE PENALTY UNDER SECTION 271(1)(C) OF THE AC T WAS IMPOSED ON A SUM OF RS.79,65,599/ - , WHICH CONSISTED OF FOLLOWING TWO ITEMS : A) THE DISALLOWANCE OF INTEREST INCOME OF RS.52.51 LAKHS; AND B) THE ADDITION MADE UNDER SECTION 68 OF THE ACT OF RS.25 LAKHS . ITA NO. 502 / M/ 1 4 2 THE LD. C OUNSEL SUBMITTED THAT THE TRIBUNAL HAS ALREADY PASSED THE ORDER IN THE QUANTUM APPEAL PREFERRED BY THE ASSESSEE. THE LD. COUNSEL FURNISHED A COPY OF THE ORDER DA T ED 7.5.2014 PASSED IN THE QUANTUM APPEAL OF THE ASSESSEE IN ITA NO.2989/MUM/2011 (AY - 2006 - 07) AND SUBMITTED THAT THE TRIBUNAL H AS RESTORED TH E ABOVE SAID ISSUE S TO THE FILE OF THE AO , S INCE THE TRIBUNAL FELT THAT THERE WAS NO CLARITY ON FACTS RELATING TO THE DETAILS OF THE ADDITIONS CONTESTED . THE LD. AR SUBMITTED THAT THE PRESENT PENALTY ORDER IS LIABLE TO BE SET ASIDE , SINCE TH E ADDITION S MADE IN RESPECT OF TWO ISSUES , REFERRED ABOVE, HAVE BEEN RESTORED BACK TO THE FILE OF THE AO . 3 . THE LD. DR DID NOT DISPUTE THE FACTUAL ASPECTS THAT W ERE PRESENT BY THE LD. AR. 4. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. W E NOT ICE THAT THE ASSESSEE HAD CONTESTED THE DISALLOWANCE OF INTEREST EXPENSES OF RS.52.51 LAKHS AND ALSO THE ADDITION MADE U/S 68 OF THE ACT AMOUNTING TO RS.25 LAKHS IN THE QUANTUM APPEAL FILED BEFORE THE TRIBUNAL . FROM THE COPY OF ORDER PASSED BY THE CO - O RDINATE BENCH OF TRIBUNAL , WE NOTICE THAT THE TRIBUNAL HAS RESTORED BOTH THE ISSUES REFERRED ABOVE TO THE FILE OF THE AO. THE RELEVANT OBSERVATIONS MADE BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE QUANTUM APPEAL ARE EXTRACTED BELOW : 7. WE HAVE HE ARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON HEARING BOTH THE PARTIES, WE ARE OF THE OPINION THAT THERE IS NO CLARITY ON FACTS RELATING TO THE DETAILS OF THE ADDITIONS MADE IN THE SUBSTANTIVE ASSESSMENT EITHER OF THE ASSESSEE OR OF OTHERS, IF ANY. HOWEVER, IT IS AN UNDISPUTED FACT THAT THE IMPUGNED ASSESSMENT IS A PROTECTIVE ASSESSMENT. IN THE REMAND PROCEEDINGS, AO SHALL EXAMINE ALL THE ABOVE CONTENTIONS OF THE ASSESSEE AND EXA MINE AFRESH THE APPLICABILITY OF THE PROVISIONS OF SECTION 145(3) AND CONSEQUENT BEST JUDGMENT ASSESSMENT, IF ANY. SO FAR AS THE ADDITIONAL GROUNDS ARE CONCERNED, WE FIND IT NECESSARY THE SAME SHOULD BE REMANDED TO THE FILES OF THE AO AND ADJUDICATE THEM ITA NO. 502 / M/ 1 4 3 A FRESH AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, ALL THE ISSUES RAISED IN THE GROUNDS AS WELL AS THE ADDITIONAL GROUNDS ARE REMANDED. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . SINCE, THE ADDITION S ON WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED HAS BEEN RESTORED TO THE FILE OF TH E AO, THE IMPUGNED PENALTY ORDER DOES NOT SURVIVE . H ENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE ISSUE OF PENALTY TO THE FILE OF THE AO , WHO MAY INITIATE PENALTY PROCEEDINGS AFRESH , IF IT WAS CONSIDER ED NECESSARY , IN ACCORDANCE WITH LAW AT THE TIME OF FINALIZING THE ASSESSMENT IN THE SETTING ASIDE PROCEEDINGS. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED F OR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29TH JUNE , 2015 . 29TH JUNE , 201 5 SD SD ( . . / I.P. BANSAL ) ( . . / B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOU NTANT MEMBER MUMBAI: 29TH JUNE , 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI