ACIT CEN CIR 4(1), MUMBAI V. OBEROI REALTY LTD, MUMBAI

ITA 5243/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0252 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: K S KARTHIKEYAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT & SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5243 /MUM/2015 ASSESSMENT YEAR : 2009-10 ACIT CEN. CIR 4(1) MUMBAI VS. OBEROI REALTY LTD., (FORMERLY KINGSTON PROPERTIES P LTD.) COMMERZ, 3 RD FLOOR, INTERNATIONAL BUSINESS PARK OBEROI GARDEN CITY OFF WESTERN EXPRESS HIGHWAY GOREGAON EAST, MUMBAI 400 063 PAN AABCK0235H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJAT MITTAL RESPONDENT BY : SHRI K S KARTHIKEYAN DATE OF HEARING : 08.0 8 .2017 DATE OF PRONOUNCEMENT : 09 .0 8 .2017 O R D E R PER P K BANSAL, VICE-PRESIDENT: THIS APPEAL HAS BEEN FILED BY THE REVENUE U/S. 253 OF THE INCOME TAX ACT, DIRECTED AGAINST THE ORDER OF THE CIT(A)-52, M UMBAI, DATED 07.08.2015 FOR ASSESSMENT YEAR 2009-10. 2. THE REVENUE HAS RAISED AS MANY AS THREE GROUNDS OF APPEAL, BUT THE ONLY SUBSTANTIAL GROUND IS WHETHER THE LEARNED CIT (A) ERRED IN DELETING PENALTY U/S. 271(1)(C) ON ACCOUNT OF PENALTY PAYMEN T MADE TO BMC FOR ITA NO.5243/MUM/2015 OBEROI REALTY LTD 2 UNAUTHORIZED CONSTRUCTION AND FINE PAID TO CUSTOM A UTHORITIES FOR IMPORTING MARBLES. THE REST OF THE GROUNDS ARE GENERAL IN N ATURE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT U/S. 143(3) FOR THE RELEVANT ASSESSMENT YEAR WAS COMPLETED ON 30.12.201 1. THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT, BESIDES, OTHER AD DITIONS AND DISALLOWANCE, MADE ADDITION OF ` .1,08,15,900/-ON ACCOUNT OF BMC CHARGES PAID FOR REGULARIZATION AND ` 44,00,897/- BEING PENALTY LEVIED BY THE CUSTOMS DEPARTMENT FOR IMPORTING MARBLE WITHOUT LICENCE. T HE ASSESSING OFFICER LEVIED PENALTY ON BOTH THESE ADDITION/DISALLOWANCE. ON APPEAL, THE CIT(A) DELETED THE PENALTY AND THUS, THE REVENUE IS IN APP EAL BEFORE US. 4. AT THE OUTSET, THE LEARNED AR OF THE ASSESSEE SU BMITTED THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY HAS BEEN LEVIED HAS ALREADY BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 04.11. 2015 IN ITA NO.1050/MUM/2013. THUS, THE PENALTY LEVIED ON THE DISALLOWANCE IS NOT SUSTAINABLE. THE LEARNED DR FOR THE REVENUE HAS NO T DISPUTED THE CONTENTION OF THE LEARNED AR. 5. CONSIDERING THE DECISION OF THE CO-ORDINATE BENC H, WE NOTE THAT THE ADDITION/DISALLOWANCE HAS ALREADY BEEN DELETED BY T HE TRIBUNAL VIDE ORDER DATED 04.11.2015 IN ITA NO.1050/MUM/2013. WE, THER EFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AS THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED HAS ALREADY BEEN DE LETED BY THE TRIBUNAL. ITA NO.5243/MUM/2015 OBEROI REALTY LTD 3 6. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DAY OF AUGUST, 2017. SD/- SD/- (PAWAN SINGH) (P K BANSAL) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI; DATED: 9 TH AUGUST, 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI 4. THE CIT 5. DR, C BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI