RATANHIRA ASSOCIATES, MUMBAI V. DCIT CIR 17(2), MUMBAI

ITA 5655/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0587 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-04-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 05-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Keywords: Depreciation
• Section: 143(3); 148

Judgement Text

1 ITA NO. 5655, 5656 & 5657 /M/201 3 M/S. RATANHIRA ASSOCIATES - (AY:01 - 02) , INCOME TAX APPELLATE TRIBUNAL,MUMBAI - D BENCH . , , BEFORE S/SH. D. MANMOHAN , VICE PRESIDENT & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 5655, 5656 & 5657 /MUM/20 13 / ASSESSMENT YEAR - 2001 - 02 , 2002 - 03 AND 2003 - 04 M/S. RATANHIRA ASSOCIATES 194, NARENDRA, STATION ROAD, WADALA , MUMBAI - 400 031. PAN:A AEFR 3611 C VS ACIT - 17(2) 2 ND FLOO R, PIRAMAL CHAMBERS, LALBAUG MUMBAI - 400 01 2 . ( / ASSESSEE ) ( / RESPONDENT ) /ASSESSEE BY :SHRI SATISH MODY (AR) / REVENUE BY : SHRI LOVE KUMAR - (DR) / DATE OF HEARING : 22 - 0 4 - 2015 / DATE OF PRONOUNCEMENT : 22 - 04 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER S DT. 11/0 7/2013 OF THE CIT(A) - 29,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL FOR THE ABOVE ME NTIONED THREE ASSESSMENT YEARS(AY.S.). THE ONLY DIFFERENCE IN THE GROUNDS IS THE AMOUNT OF THE PENALTY , LEVIED BY THE A SSESSING O FFICER(AO) . GROUNDS OF APPEAL FOR T HE AY.2001 - 02 READ AS UNDER: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN LEVYING THE PENALTY OF RS. 8,61,328/- UNDER - SECTION 271(1)(C) OF THE ACT WITHOUT APPRECIATIN G THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) FAILED TO APPRECIATE THAT THE CLAIM OF DEPRECIATION ON TENANCY - RIGHT MADE BY THE APPELLANT WAS A PLAUSIBLE CLAIM MORE SO IN LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TECHNO SHARES AND STOCKS LIMITED REPORTED IN 327 ITR 323 AND ALSO THAT THE APPELLANT HAD DISCLOSED ALL THE NECESSARY PARTICULARS FOR THE CLAIM OF DEPRECIATION ON TENANCY RIGHTS. 3. ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE HON'BLE ITAT HAD SET ASIDE THE ORDER IN THE QUANTUM PROCEEDINGS BACK TO THE ASSESSING OFFICER AND FURTHER IN THE IMMEDIATE EARLIER ASSESSMENT YEAR I.E. 2000 - 2001 THE PRED ECESSOR CIT(A) FOLLOWING THE SAID ORDER HAD ALLOWED THE APPEAL OF THE APPELLANT IN THE PENALTY APPEAL AND AS SUCH SINCE THE QUANTUM WAS SENT BACK PENALTY COULD NOT BE CONFIRMED UNLESS FRESH PENALTY PROCEEDINGS WERE INITIATED IN THE ORDER GIVING EFFECT T O THE HON'BLE ITAT ORDER BY THE ASSESSING OFFICER. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/MODIFY/DELETE ANY/ALL GROUNDS OF APPEAL.. EFFECTIVE GROUND OF APPEAL FOR ALL THE THREE YEARS IS IDENTICAL I.E. CONFIRMATION OF CONCEALMENT OF PENALTY BY THE FIRST APPELLATE AUTHORITY (FAA). NOW WE WOULD TAKE UP THE APPEAL FOR THE AY/.2001 - 02 BRIEF FACTS : 2. ASSES SEE - FIRM, ENGAGED IN THE BUSINESS OF DEALING IN FERROUS AND NON - FERROUS METALS, FILED ITS ORIGIANL RETURN DECLARING NIL INCOME. SUBSEQUENTLY, THE CASE WAS RE - OPENED BY ISSUE OF NOTICE U/S. 148 OF THE ACT. THE AO COMPLET ED THE ASSESSMENT ON 24.12.2007, U/S. 143(3) R.W .S. 147 OF THE ACT, DETERMINING THE INCOME OF THE ASSESSEE AT RS.59.33 LACS. THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE A CT FOR CONCEALING AND FURNISHING INACCURATE PARTICULARS OF INCOME. 2 ITA NO. 5655, 5656 & 5657 /M/201 3 M/S. RATANHIRA ASSOCIATES - (AY:01 - 02) DU RING THE ASSESSMENT PROCEEDINGS, THE AO MADE AN ADDITION OF RS.24.60 LACS ON ACCOUNT OF DEPRECIATI - ON WITH REGARD TO VALUE OF TENANCY RIGHTS AND INITIATED PENALTY PROCEEDING ABOUT THE SA ID ADD I TION . AFTER CONSIDERING THE SUBMISSION OF TH E ASSESSEE TO THE PENALTY NOTIC E , THE AO VIDE HIS ORDER DT.29.3.2010 IMPOSED A PENALTY OF RS.8,61,328/ - U/S. 271(1) ( C) OF THE ACT. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E FAA .A FTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER ,THE FAA UPHELD THE DECISION OF THE AO OF IMPOSING PENALTY FOR CONCEALING THE PARTICULARS OF INCOME FOR THE YEAR UNDER CONSIDERATION.MEANWHILE, THE ASSESSEE HAD APPROACHED THE IT AT FOR THE ADDITIONS CONFIRMED BY THE FAA IN QU ANTUM PROCEEDINGS. THE TRIBUNAL, VIDE ITS ORDER DATED 31.5.2010 (ITA NOS.1893 TO 1896/MUM/2009 - AY.S. 2000 - 01 TO 2003 - 04), SET ASIDE THE MATTER TO THE FILE OF THE AO FOR PASSING FRESH ASSESSMENT ORDER. 3. BEFORE U S THE AUTHORISED REPRESENTATIVE(AR) CONTENDED THAT THE TRIBUNAL HAD RESTORED BACK THE MATTER TO THE FILE OF AO, THAT ORDER OF THE FAA CONFIRMING THE PENALTY ORDER OF THE AO WOULD NOT SURVIVE, THAT THE FAA WHILE DECIDING THE APPEAL FOR THE AY 2000 - 01 HAD DE LETED THE PENALTY FOR THAT AY. THE DR LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 4. WE HAVE PERUSED THE MATERIAL AVAILABLE ON FILE. THE TRIBUNAL, VIDE ITS ORDER DATED 31.5.2010 (SUPRA), HAD SET ASIDE THE ORIGINAL ORDER TO THE FILE OF THE AO. IN THESE C IRCUMSTANCES, THE PENALTY ORDER PASSED BY THE AO AND CONFIRMED BY THE FAA WOULD NOT SURVIVE. SO,R EVERSING THE ORDER OF THE FAA, WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. ITA NO.565 6 - 57 /MUM/2013 - AY 200 2 - 03 &03 - 04 AS STATED EARLIER, TH E ISSUE FOR THE ABOVE MENTIONED TWO AY . S IS IDENTICAL THAT OF THE EARLIER AY. AS THE FACTS AND CIRCUMSTANCES OF THES E YEARS, EXCEPT FOR THE PENALTY A MOUNT, ARE IDENTICAL TO THE FACTS OF THE AY .2001 - 02.F O LLOWING OUR ORDER FOR THAT YEAR, WE DECIDE THE EFFECTIV E GROUNDS OF APP EAL IN FAVOUR OF THE ASSESSEE - FIRM, FOR BOTH THE AY.S. AS A RESULT, APPEALS FILED BY THE ASSESSEE FOR ALL THE YEARS STAND ALLOWED. . ORDER PRO NOUNCED I N THE OPEN COURT ON 22 ND , APRIL , 2015. 2 2.04. 2015 SD/ - SD/ - ( . / D. MANMOHAN ) ( / RAJENDRA) / VICE PRESIDENT / ACCOUNTANT MEMBER / MUMBAI, /DATE: 22 .04 .2015 JV. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CO NCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.