ADITYA BIRLA POWER COMPANY LTD ( FORMERLY KNOWN AS BIRLA PROJECT DEVELOPMENT CO. LTD), MUMBAI V. ACIT RG 8(1), MUMBAI

ITA 5686/MUM/2010

• Counselvise Citation: 568619914 RSA 2010
• Duration Of Justice: 3 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 29-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 13-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Assessee Lawyers: J D MISTRY
• Keywords: Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 5931/MUM/2010 ASSESSMENT YEAR: 2003-04 ACIT RG 8(1) MUMBAI VS. ADITYA BIRLA CENTRE C-WING, 1 ST FLOOR S.K. AHIRE MARG, WORLI MUMBAI-400 030 PAN:AABCB 7067 N (APPLICANT) (RESPONDENT) ITA NO. 5686/MUM/2010 ASSESSMENT YEAR: 2003-04 ADITYA BIRLA CENTRE C-WING, 1 ST FLOOR S.K. AHIRE MARG, WORLI MUMBAI-400 030 PAN:AABCB 7067 N VS. ACIT RG 8(1) MUMBAI (APPLICANT) (RESPONDENT) ASSESSEE BY : J.D. MISTRY & MADHUR AGARWAL REVENUE BY : MR. G.N. MAKWANA DATE OF HEARING : 29.08.2013 DATE OF PRONOUNCEMENT : 04.09.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THESE CROSS APPEALS FILED BY THE ASSESSEE AND REVE NUE ARE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-16, MUMBAI DATED 13.05.2 010 PARTLY CONFIRMING THE PENALTY LEVIED BY THE AO U/S 271 (1)(C) OF THE INCO ME TAX ACT ON ACCOUNT OF VARIOUS DISALLOWANCES/ADDITIONS MADE IN THE ASSESSMENT FRAM ED U/S 143(3) OF THE ACT IN FOR THE ASSESSMENT YEAR 2003-04. BOTH THE APPEALS ARE DISPOSED OFF BY THIS COMMON ORDER. 2. DURING THE PROCEEDINGS BEFORE US, THE LD. SENIOR COUNSEL FOR THE ASSESSEE AND LD.DR HAVE ELABORATELY ARGUED ON THE RESPECTIVE GROUNDS OF APPEAL ON MERITS. HOWEVER, IT HAS ALSO BEEN BROUGHT TO OUR NOTICE THA T THE APPEAL OF THE ASSESSEE ITA NO. 5931/MUM/2010 ITA NO. 5686/MUM/2010 ADITYA BIRLA CENTRE ASSESSMENT YEAR: 2003-04 2 AGAINST THE ORDER OF THE ITAT IN THE QUANTUM PROCEE DINGS CONFIRMING THE ADDITION MADE BY THE AUTHORITIES ON THE BASIS OF WHICH THE P ENALTY HAS BEEN LEVIED HAS BEEN ADMITTED BY THE HONBLE HIGH COURT OF BOMBAY VIDE O RDER DATED 22.07.2011 IN INCOME TAX APPEAL NO. 4611 OF 2010 UNDER SECTION 26 0 A OF THE INCOME TAX ACT AS THE ISSUE INVOLVES SUBSTANTIAL QUESTION OF LAW. WHE RE THE HIGH COURT HAS ACCEPTED THE APPEAL AS THE SUBJECT MATTER OF ADDITION INVOLV ES SUBSTANTIAL QUESTION OF LAW U/S 260A, IT IS NEEDLESS TO EMPHASIS THAT THE ISSUE IS DEBATABLE AND ACCORDINGLY, NO PENALTY IS IMPOSABLE U/S 271(1)(C) OF ACT. THE HON BLE DELHI HIGH COURT IN CIT V. LIQUID INVESTMENT & TRADING CO. [IN ITA NO.240/2009 ] VIDE ITS JUDGMENT DATED 5.10.2010 HAS HELD THAT AN ISSUE BECOMES DEBATABLE ON THE ADMISSION OF SUBSTANTIAL QUESTION OF LAW AGAINST THE TRIBUNAL ORDER BY THE H IGH COURT. IN SUCH A CASE ALSO PENALTY HAS BEEN HELD TO BE NOT IMPOSABLE U/S 271(1 )(C) OF THE ACT. THE MUMBAI BENCH OF THE TRIBUNAL IN NAYAN BUILDERS & DEVELOPERS PVT. LTD. V. ITO [ITA NO.2379/MUM/2009], VIDE ORDER DATED 18.03.2011, HAS ALSO HELD THAT WH ERE SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMITTED BY TH E HONBLE HIGH COURT AGAINST THE ADDITIONS SUSTAINED BY THE TRIBUNAL, THERE CANNOT B E ANY QUESTION OF PENALTY U/S.271(1)(C). SIMILAR VIEW HAS BEEN TAKEN BY THE T HIRD MEMBER OF THE TRIBUNAL IN THE CASE OF RAPAM MERCANTILES LIMITED V. DCIT [(2004) 91 ITD 23 7 (AHD.) (TM)]. IN VIEW OF THAT MATTER, WE DELETE THE ENTIRE PENALTY L EVIED CONSEQUENT TO THE DISALLOWANCES/ADDITIONS ON WHICH THE QUANTUM APPEAL NOW IS ADMITTED BY THE HIGH COURT. IT IS NEEDLESS TO MENTION THAT IT IS NOT REQ UIRED AT THIS STAGE TO DISCUSS OR DELIBERATE THE GROUNDS OF APPEALS SEPARATELY ON MER IT. 3. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IS ALLOWED AND THAT OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPTEMBER, 2013. SD/- SD/ - (B. RAMAKOTAIAH) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 04.09.2013. *SRIVASTAVA ITA NO. 5931/MUM/2010 ITA NO. 5686/MUM/2010 ADITYA BIRLA CENTRE ASSESSMENT YEAR: 2003-04 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR H BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.