ITO - 21(1)(2), MUMBAI V. APARNA A. HENDRE, MUMBAI

ITA 5225/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1060 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR BHAGATLD
• Assessee Lawyers: S MICHAEL JERALDLD
• Keywords: Tax effect
• Section: 271(1)(c); 2

Judgement Text

1 ITA NO.5225/MUM/2018 APARNA A.HENDRE ASSESSMENT YEAR-2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI VIKAS AWASTHY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5225/MUM/2018 ( / ASSESSMENT YEAR: 2009-10) ITO - 21(1)(2) 1 ST FLOOR, PIRAMAL CHAMBERS LALBAUG MUMBAI 400 012 / VS. APARNA A.HENDRE GF, R.NO.33 166-B, TARA HOUSE, BHAGAT ROAD MAHIM, MUMBAI 400 016 ./ ./PAN/GIR NO. AAHPB-9464-E ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI SAMIR BHAGAT-LD. AR / RESPONDENT BY : SHRI S. MICHAEL JERALD- LD. DR / DATE OF HEARING : 18/12/2019 / DATE OF PRONOUNCEMENT : 18/12/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2009-10 CONTEST THE ORDER OF LD. COMMISSIO NER OF INCOME-TAX (APPEALS)-33, MUMBAI, [IN SHORT REFERRED TO AS CIT (A)], APPEAL NO. CIT(A)- 33/RG.21/417/2015-16 DATED 14/06/2018 QUA DELETION OF PENALTY U/S 2 ITA NO.5225/MUM/2018 APARNA A.HENDRE ASSESSMENT YEAR-2009-10 271(1)(C) FOR RS.42,296/- IN RESPECT OF DISALLOWANC E OF RS.68,640/- MADE IN THE QUANTUM ASSESSMENT ORDER ON ACCOUNT OF BOGUS PU RCHASES. THE STATED PENALTY WAS IMPOSED BY LD. ASSESSING OFFICER VIDE P ENALTY ORDER DATED 20/08/2015 BUT THE SAME WAS DELETED BY FIRST APPELL ATE AUTHORITY, FINDING MERITS IN ASSESSEE SUBMISSIONS. AGGRIEVED, THE REV ENUE IS IN FURTHER APPEAL BEFORE US. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR ASSESS EE, AT THE OUTSET, RAISED A PRELIMINARY ISSUE THAT THE APPEAL IS NOT M AINTAINABLE SINCE THE QUANTUM OF PENALTY BEING CONTESTED BY REVENUE IS LE SS THAN MONETARY LIMIT OF RS. 50 LACS AS PRESCRIBED BY CBDT IN ITS RECENTL Y ISSUED CIRCULAR NO.17/2019 DATED 08/08/2019 [F.NO.279/MISC.142/2007 -TTJ(PT.) GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMEN T OF REVENUE] AND THEREFORE, THE APPEAL IS LIABLE TO BE DISMISSED. TH E LD. DR SUBMITTED THAT PENALTY WAS LEVIED ON ACCOUNT OF ALLEGED BOGUS PURC HASES AS PER INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, MAH ARASHTRA AND THEREFORE, THE APPEAL WOULD BE COVERED BY EXCEPTION GIVEN IN THE CIRCULAR. 3. UPON PERUSAL OF CASE RECORDS, PRIMA FACIE, IT APPEARS THAT THE TAX EFFECT OF QUANTUM OF PENALTY BEING CONTESTED BY THE REVENUE IS LESS THAN PRESCRIBED LIMIT OF RS.50 LACS AND THE SAME IS COVE RED BY RECENTLY ISSUED LOW TAX EFFECT CIRCULAR NO.17/2019 DATED 08/08/2019 ISSUED BY CENTRAL BOARD OF DIRECT TAXES [CBDT]. THIS RECENT CIRCULAR FURTHER ENHANCES THE MONETARY LIMIT FIXED IN EARLIER CIRCULAR NO.3 OF 20 18 DATED 11/07/2018 ISSUED BY CBDT AS AMENDED ON 20/08/2018. SO FAR AS THE CONTENTIONS RAISED BY LD. DR ARE CONCERNED, WE ARE OF THE CONSI DERED OPINION THAT 3 ITA NO.5225/MUM/2018 APARNA A.HENDRE ASSESSMENT YEAR-2009-10 QUANTUM PROCEEDINGS AND PENALTY PROCEEDINGS WERE SE PARATE PROCEEDINGS AND THE CIRCULAR WOULD APPLY TO EACH PROCEEDING SEP ARATELY. NO SEPARATE EXCEPTION HAS BEEN PROVIDED IN ANY OF THE CIRCULAR WITH RESPECT TO QUANTUM OF PENALTY. IN VIEW OF THE SAME, WE DISMISS THE REV ENUES APPEAL. 4. AT THE SAME TIME, A LIBERTY IS GIVEN TO REVENUE TO SEEK RECALL OF THE APPEAL, IF AT A LATER STAGE, IT IS FOUND THAT THE M ATTER IS COVERED BY ANY EXCEPTIONS PROVIDED IN ANY OF THE CIRCULAR OR IN CA SE THE TAX EFFECT AS AGITATED BY REVENUE EXCEEDS THE PRESCRIBED MONETARY LIMIT. 5. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2019. SD/- SD/- (VIKAS AWASTHY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18/12/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#() , ) , / DR, ITAT, MUMBAI 6. '+,- / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.