ASST CIT CEN CIR 8(4), MUMBAI V. OLEANDER FARMS P.LTD, NAVI MUMBAI

ITA 5244/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3911 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2016
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 06-11-2015
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN , JM ./ ITA NO. 5244&5245 / MUM/20 1 5 ( / ASSESSMENT YEAR : 2006 - 07 & 2007 - 08 ) ACIT - CC - 8(4), MUMBAI VS. M/S OLEANDER FARMS PVT. LTD., D - 73/1, TTC INDUSTRIAL AREA, MIDC ROAD TURBHE, NAVI MUMBAI - 400705 ./ ./ PAN/GIR NO. : A A AC O 6556 G ( / APPELLANT ) .. ( / RESPONDENT ) /R EVENUE BY : SHRI B.PRUSETH /ASSESSEE BY : NONE / DATE OF HEARING : 29 / 1 2 /2015 / DATE OF PRONOUNCEMENT 18/02/2016 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEAL S FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - MUMBAI, FOR THE ASSESSMENT YEAR 2006 - 07 & 2007 - 08. 2 . SINCE, NONE APPEARED ON BEHALF OF THE ASSESSEE, WE DECIDED TO DISPOSE OF THIS APPEAL AFTER CONSIDERING THE SUBMISSIONS MADE BY LD. DR. 3 . THE REVENUE IN BOTH T HE APPEALS IS AGGRIEVED FOR DELETION OF PENALTY IMPOSED BY THE AO. 4. LD. DR SUBMITTED THAT THE AO HAS RIGHTLY IMPOSED PENALTY PROCEEDINGS AS THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME. 5. WE HAVE CONSIDERED THE SUBMISSION MADE BY LD. DR AND P ERUSED THE RECORD CAREFULLY. WE FOUND THAT THE CIT(A) DELETED THE PENALTY SO IMPOSED BY THE AO U/S.271(1)(C) OF THE ACT AFTER HAVING THE FOLLOWING OBSERVATIONS : - ITA NO S . 5244&5245 /1 5 2 3.2 PERUSAL OF THE ABOVE REFER ORDER PASSED BY THE HON'BLE ITAT SHOWS THAT THE TRIBUNAL HAS V IDE DETAILED REASONS DISCUSSED FROM PARA 11 TO 15 CONSIDERED THE FACTS OF THE CASE FOR A.Y.2006 - 07, WHICH IS THE MAIN YEAR AND HAS BEEN FOLLOWED FOR SUBSEQUENT A.YRS. THE RELEVANT CONCLUDING PARAGRAPH READS AS UNDER: '15. IN VIEW OF THE AFORESAID FACTUAL MATRIX, IN OUR VIEW THE CIT(A) CLEARLY ERRED IN NOT ACCEPTING THE AGRICULTURAL INCOME AS DEDUCED BY THE ASSESSEE ON THE BASIS OF THE BOOKS OF ACCOUNT MAINTAINED. THUS, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICER TO ACCEPT THE AGRICUL TURAL INCOME DECLARED BY THE ASSESSEE AS RETURNED. AS A CONSEQUENCE, ASSESSEE SUCCEEDS ON THIS ASPECT OF THE MATTER. ' FOR THE CONSEQUENT A.YRS. THE TRIBUNAL VIDE PARA 19 HAS HELD AS BELOW: '19. INSOFAR AS OTHER FOUR APPEALS RELATING TO ASSESSMENT YEAR S 2007 - 08 TO 2010 - 11 ARE CONCERNED, THE FACTS AND CIRCUMSTANCES THEREIN ARE IDENTICAL TO THOSE CONSIDERED BY US IN THE APPEAL OF ASSESSEE FOR ASS ESSMENT YEAR 2006 - 07 AND, THEREFORE, OUT DECISION IN THE APPEAL FOR ASSESSMENT YEAR 2006 - 07 SHALL APPLY MUTATIS MUTANDIS IN OTHER APPEALS ALSO. 3.3 IN THE DECISION RENDERED IN THE CASE OF K.C. BUILDERS V ACIT (2004) 265 ITR 562 / 135 TAXMAN 461 (SC), THE HON'BLE APEX COURT HELD THAT WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH PENALTY FO R CONCEALMENT WAS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR CONCEALMENT, AND THEREFORE IN SUCH A CASE NO SUCH PENALTY CAN SURVIVE AND THE SAME IS LIABLE TO BE CANCELLED. 3.4 ACCORDINGLY, CONSIDERING THE FACTS OF THE INSTANT CASE AND THE JUDI CIAL PRONOUNCEMENTS CITED, THE GROUNDS RAISED BY THE APPELLANT ARE ALLOWED AND THE PENALTY LEVIED IS CANCELLED. 4. ACCORDINGLY THE APPEAL IS ALLOWED. FROM THE FINDINGS OF THE CIT(A) IT IS CLEAR THAT THE TRIBUNAL HAS DELETED THE ADDITION ON ACCOUNT OF A GRICULTURAL INCOME AS INCOME FROM OTHER SOURCES VIDE ORDER DATED 17 - 7 - 2015, PASSED IN ITA NOS.2245 - 2249/MUM/2013. THEREFORE, THE CIT(A) HAS RIGHTLY RELIED ON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF K.C.BUILDERS, 265 ITR 562, WHEREIN IT HAS BEE N HELD THAT WHEN THE ADDITIONS MADE IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT WAS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR CONCEALMENT, ITA NO S . 5244&5245 /1 5 3 AND THEREFORE IN SUCH A CASE NO SUCH PENALTY CAN SURVIVE AND THE SAME IS LIAB LE TO BE CANCELLED. ACCORDINGLY, WE SEE NO REASON TO INTERFERE IN THE ORDER OF CIT(A) IN DELETING THE PENALTY SO IMPOSED BY THE AO U/S.271(1)(C) 5 . IN THE RESULT, BOTH APPEAL S OF REVENUE ARE DISMISSED O RDER PRONOUNCED IN THE OPEN COURT ON THIS 18/02/2016 SD/ - ( SANDEEP GOSAIN ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 18/02/2016 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//