SHALINI KARAN KUMAR, MUMBAI V. ACIT CEN CIR 34, MUMBAI

ITA 5457/MUM/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3322 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 12-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 22-07-2011
• Court: TRIBUNAL
• Department Lawyers: MRS BEENA SUBHASH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH (JM) & SHRI B.R. BASKARAN (AM) I.T.A. NO. 5457 /MUM/ 20 1 1 (ASSESSMENT YEAR 200 6 - 0 7 ) MRS. SHALINI KARAN KUMAR 1305, MEGHDDOT B, 13 TH FLOOR OFF. JOGGERS PARK LOKHANDWALA ANDHE RI WEST MUMBAI - 400 053. VS. ACIT, CC - 34 ROOM NO. 104 1 ST FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AMGPS9508P ASSESSEE BY SHRI DARSHAN GANDHI DEPARTMENT BY MRS. BEENA SUBHASH DATE OF HEARING 30 .8 . 201 6 DATE OF PRONOUNCEMENT 2.9 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER PASSED BY LD CIT(A) - 41, MUMBAI CONFIRMING THE PENALTY OF RS.1,33,002/ - LEVIED BY THE AO U/S 271(1)(C) OF THE ACT FOR AS SESSMENT YEAR 2007 - 07. 2. AT THE TIME OF HEARING, THE LD A.R RAISED A LEGAL ISSUE, VIZ., WHETHER THE ASSESSING OFFICER IS ENTITLED TO LEVY PENALTY ON ANOTHER LIMB OF SEC. 271(1)(C) OF THE ACT WHEN THE PENALTY PROCEEDINGS WERE INITIATED ON A DIFFERENT LIMB? 3. THE LD A.R SUBMITTED THAT THE PENALTY U/S 271(1)(C) OF THE ACT MAY BE LEVIED EITHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER IS ENTITLED TO LEV Y PENALTY UNDER THE LIMB UNDER WHICH THE PROCEEDINGS WERE INITIATED. INVITING OUR ATTENTION TO THE ASSESSMENT ORDER, THE LD A.R SUBMITTED THAT THE MRS. SHAL INI KARAN KUMAR 2 ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PART ICULARS OF INCOME. INVITING OUR ATTENTION TO PARAGRAPH 11 OF THE PENALTY ORDER, THE LD A.R SUBMITTED THAT THE ASSESSING OFFICER HAS, HOWEVER, LEVIED PENALTY FOR CONCEALMENT OF PARTICULARS OF INCOME. 4. THE LD A.R SUBMITTED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO - ORDINATE BENCH OF MUMBAI TRIBUNAL IN THE CASE OF DHARNI DEVELOPRS VS. ACIT (2015)(61 TAXMANN.COM 208) AND THE TRIBUNAL HAS HELD THAT THE PENALTY ORDER CANNOT BE SUSTAINED. 5. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASS ESSEE HAS FAILED TO OFFER PROPER EXPLANATIONS IN TERMS OF EXPLANATION 1 TO SEC. 271(1)(C) OF THE ACT. ACCORDINGLY HE SUPPORTED THE ORDER PASSED BY LD CIT(A). WITH REGARD TO THE LEGAL ISSUE URGED BY THE ASSESSEE, THE LD D.R SUBMITTED THAT THE ASSESSEE IS RAISING THE SAME FOR THE FIRST TIME BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. EVEN THOUGH ABOVE SAID LEGAL ISSUE WAS NOT URGED BEFORE THE LOWER AUTHORITIES, SINCE THE SAME IS A PURE LEGAL ISSUE AND ALL THE FA CTS & MATERIALS RELATING THERETO ARE AVAILABLE ON RECORD, THE SAME CAN BE ADJUDICATED BY US AS PER THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION(229 ITR 383). THERE IS NO DISPUTE WITH REGARD TO THE FACT T HAT THE ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HOWEVER HE HAS LEVIED PENALTY FOR CONCEALMENT OF PARTICULARS OF INCOME. HENCE THE ASSESSEE HAS CONTENDED THAT THE IMPUGNED PENALTY ORDER IS NOT SUSTAINABLE. WE NOTICE THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE CO - ORDINATE BENCH IN THE CASE OF DHARNI DEVELOPERS (SUPRA), WHEREIN THE CONTENTION OF THE ASSESSEE WAS ACCEPTED BY FOLLOWING THE DECISIONS RENDERED IN THE FOLLOWING CASES: - MRS. SHAL INI KARAN KUMAR 3 (A) K.BHATIA VS. CIT (1992)(193 ITR 379)(GUJ) (B) CIT VS. LAKHDHIR LALJI (1972)(85 ITR 77)(GUJ) (C) SAMSON PERINCHERY VS. ASST. CIT (ITA NO.5625/MUM/2013 (D) CIT VS. MANJUNATHA COTTON & GINNING FACTORY (359 ITR 565)(KAR) 7. IN V IEW OF THE ABOVE, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE CONTENTIONS OF THE ASSESSEE ON THE LEGAL ISSUE URGED BY HIM. ACCORDINGLY, CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID CASES, WE HOLD THAT THE IMPUGNED PENALTY IS NOT SUSTAINABLE. SINCE WE HAVE QUASHED THE PENALTY ORDER ON LEGAL GROUND, THERE IS NO REQUIREMENT TO ADJUDICATE THE GROUNDS URGED ON MERITS. ACCORDINGLY WE SET ASIDE THE ORDERS PASSED BY THE TAX AUTHORITIES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2.9 .2016 SD/ - SD/ - (MAHAVIR SINGH ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 / 9 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS