BALAJI SINGH TEEKA, MUMBAI V. ITO (IT) 4(1)(1), MUMBAI

ITA 5453/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0048 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 07-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: KAIVAN SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI C NAGENDRA PRASAD, JUDICIAL MEMBER & DR ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 5453/MUM/2016 ASSESSMENT YEAR : 2003-04 ITA NO. 5454/MUM/2016 ASSESSMENT YEAR : 2005-06 ITA NO. 5455/MUM/2016 ASSESSMENT YEAR : 2004-05 ITA NO. 5456/MUM/2016 ASSESSMENT YEAR : 2006-07 ITA NO. 5457/MUM/2016 ASSESSMENT YEAR : 2008-09 ITA NO. 5458/MUM/2016 ASSESSMENT YEAR : 2009-10 BALAJI SINGH TEEKA, 2 ND FLOOR, SAI COMMERCIAL COMPLEX ANNEXE, BKS DEVSHI MARG, STATION ROAD, GOVANDI (EAST) MUMBAI 400 088 PAN AHNPB3075G VS. ITO (IT) 4(1)(1) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAIVAN SHAH RESPONDENT BY : SHRI V VIDHYADHAR (DR) DATE OF HEARING : 2 3 .0 2 .201 8 DATE OF PRONOUNCEMENT : 28 .0 2 .201 8 O R D E R PER BENCH: ALL THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE A GAINST DIFFERENT ORDERS OF THE CIT(A)-55, MUMBAI, DATED 18.05.2016, IN RESTORING THE PENALTY PROCEEDINGS TO THE ASSESSING OFFICER AND IN DIRECTI NG TO INITIATE THE PROCEEDINGS - IMPOSE/DROP THE PROCEEDINGS AFTER GIV ING EFFECT TO THE ORDER OF THE ITAT. ITA NO.5453 TO 5458/MUM/2016 BALAJI SINGH TEEKA 2 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE, VIDE LETTER DATED 22.02.2018, REQUESTED TO WITHDRAW APPEALS FILED BY THE ASSESSEE IN ITA NO. 5454/MUM/2016 FOR A.Y. 2004-05 AND ITA NO. 5456/MUM /2016 FOR A.Y. 2006-07, STATING THAT AFTER THE ORDER OF THE HONBL E TRIBUNAL IN THE QUANTUM APPEAL, THE ADDITION HAS BEEN REDUCED TO NIL AND, HENCE, THERE CANNOT BE ANY PENALTY FOR THESE TWO YEARS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUB MITTED THAT THE APPEAL BY THE ASSESSEE AGAINST THE QUANTUM ADDITIONS HAS B EEN DISPOSED OF BY THE TRIBUNAL FOR A.YS 2003-04 TO 2009-10 IN ITA NOS. 54 77 TO 5483/MUM/2013 BY ORDER DATED 31.07.2015, DELETING THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF THE ANNUAL LETTING VALUE OF THE COMME RCIAL PROPERTIES LET OUT BY THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE APPEALS PREFERRED BEFORE THE LEARNED CIT(A) AGA INST IMPOSITION OF PENALTY HAVE BEEN TAKEN UP FOR HEARING AND THE LEARNED CIT( A) RESTORED THE PENALTY PROCEEDINGS TO THE FILE OF THE ASSESSING OFFICER TO INITIATE THE PROCEEDINGS EITHER TO IMPOSE OR DROP THE PENALTY, AFTER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE GRIEVANCE OF THE ASSESSEE IN THE APPEALS FILED AGAINST THE OR DER OF THE LEARNED CIT(A) RESTORING THE PENALTY PROCEEDINGS TO THE ASSESSING OFFICER IS THE ASSESSEE DID NOT CONTEST THE ADDITION MADE BY THE ASSESSING OFFI CER IN RESPECT OF RESIDENTIAL PROPERTIES I.E. IN COMPUTING THE ANNUAL LETTING VALUE IN RESPECT OF RESIDENTIAL PROPERTIES BUT HAD CONTESTED ONLY THE A DDITION MADE WITH RESPECT TO THE COMMERCIAL PROPERTIES AND, THEREFORE, THE CI T(A) SHOULD NOT HAVE RESTORED THE PENALTY PROCEEDINGS TO THE ASSESSING O FFICER INSTEAD HE HIMSELF SHOULD HAVE DECIDED. THE LEARNED COUNSEL FURTHER S UBMITTED THAT THE TRIBUNAL IN ITS ORDER HAS DEALT WITH THE ADDITION I N RESPECT OF COMMERCIAL PROPERTIES AND, THEREFORE, IT IS SUBMITTED BEFORE U S THAT THE CIT(A) SHOULD NOT HAVE RESTORED THE PENALTY PROCEEDINGS TO THE ASSESS ING OFFICER IN RESPECT OF ITA NO.5453 TO 5458/MUM/2016 BALAJI SINGH TEEKA 3 THE ADDITION MADE ON RESIDENTIAL PROPERTIES. IT IS THE CONTENTION OF THE LEARNED COUNSEL THAT THE CIT(A) SHOULD HAVE DECIDED THE IMPOSITION OF PENALTY ON RESIDENTIAL PROPERTIES INSTEAD OF REMITT ING THE SAME TO THE ASSESSING OFFICER. 4. THE LEARNED DR BEFORE US SUBMITTED THAT SINCE TH E LEARNED CIT(A) HAS RESTORED THE PENALTY PROCEEDINGS TO THE ASSESSING O FFICER TO INITIATE THE PROCEEDINGS - EITHER TO IMPOSE OR DROP THE PENALTY, BASED ON THE ORDER OF THE TRIBUNAL, THERE SHOULD NOT BE ANY GRIEVANCE TO THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PER USED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSING OFFICER IMPOSED PENALTY ON THE ADDITION MADE ON ACCOUNT OF INCOME FROM HOUSE P ROPERTY IN RESPECT OF THE ASSETS LET OUT BY THE ASSESSEE, BOTH COMMERCIAL AS WELL AS RESIDENTIAL. THE ASSESSEE CONTESTED THE ADDITION I.E. ESTIMATING THE ANNUAL LETTING VALUE IN RESPECT OF COMMERCIAL PROPERTIES AND THE TRIBUNA L BY ITS COMMON ORDER FOR THE ASSESSMENT YEARS 2003-04 TO 2009-10, DATED 31.0 7.2015, DELETED THE ADDITIONS. WHEN THE PENALTY APPEALS CAME UP BEFORE THE CIT(A), THE CIT(A) TAKING NOTE OF THE FACT THAT THE TRIBUNAL DELETED T HE ADDITIONS IN RESPECT OF COMMERCIAL PROPERTIES RESTORED THE PENALTY PROCEEDI NGS FOR INITIATION EITHER TO IMPOSE/DROP THE PROCEEDINGS OF PENALTY AFTER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. HOWEVER, IT IS THE CONTENTION OF THE LEA RNED COUNSEL THAT THE CIT(A) SHOULD HAVE DECIDED THE IMPOSITION OF PENALTY ON TH E ADDITION MADE IN RESPECT OF RESIDENTIAL PROPERTIES, WHICH WERE NOT C ONTESTED IN THE QUANTUM APPEALS. ON A PERUSAL OF THE ASSESSMENT ORDER AS W ELL AS PENALTY ORDER, WE FIND THAT THE PENALTY WAS INITIATED ON THE ADDITION MADE TOWARDS INCOME FROM HOUSE PROPERTY, WHICH CONSISTED OF BOTH COMMERCIAL AND RESIDENTIAL PROPERTIES. ON A PERUSAL OF THE CIT(A)S ORDER, WE DO NOT FIND ANY INFIRMITY IN DIRECTING THE ASSESSING OFFICER TO RE-INITIATE THE PROCEEDINGS TO IMPOSE/DROP ITA NO.5453 TO 5458/MUM/2016 BALAJI SINGH TEEKA 4 THE PROCEEDINGS OF PENALTY BASED ON THE ORDER OF TH E TRIBUNAL AS THE TRIBUNAL HAS ALREADY DELETED THE ADDITION PARTIALLY. THE AP PREHENSION OF THE ASSESSEE PROBABLY WAS THAT THE CIT(A) DIRECTED TO INITIATE T HE PENALTY PROCEEDINGS AGAIN. THE FINDING /DIRECTION OF THE CIT(A) IS VER Y CLEAR IN AS MUCH AS THE DIRECTION IS ONLY TO RE-INITIATE THE PROCEEDINGS EI THER TO IMPOSE OR DROP THE PROCEEDINGS OF PENALTY. THE ASSESSING OFFICER SHAL L TAKE A DECISION EITHER TO IMPOSE OR DROP THE PENALTY PROCEEDINGS BASED ON THE OBSERVATIONS MADE BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS. IN THE CI RCUMSTANCES, WE DO NOT SEEN ANY VALID REASON TO INTERFERE WITH THE DIRECTI ONS GIVEN BY THE LEARNED CIT(A). 6. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR ASSESSMENT YEARS 2003-04, 2005-06, 2008-09 AND 2009-10 ARE DISMISSED AND THE APPEALS FOR THE ASSESSMENT YEARS 2004-05 AND 2006-07 ARE DISMIS SED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DAY OF FEBRUARY, 2018. SD/- SD/- (DR ARJUN LAL SAINI) (C NAGENDRA PRASAD) ACCOUNTANT MEMBER JU DICIAL MEMBER MUMBAI; DATED: 28 TH FEBRUARY, 2018 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, G BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI