NSIL EXPORTS LTD, MUMBAI V. DCIT RG 3(2), MUMBAI

ITA 5836/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83466 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-08-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 30-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: DR P DANIEL
• Keywords: Difference of opinion

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.5836/MUM/2013, A.Y. 2001-02 ITA NO.5837/MUM/2013, A.Y. 2002-03 ITA NO.5838/MUM/2013, A.Y. 2003-04 NSIL EXPORTS LTD., 621, TULSIANI CHAMBERS, NARIMAN POINT, MUMBAI. PAN:AAACN 5529J (APPELLANT ) VS. THE DCIT 3(2), MUMBAI. (RESPONDENT) APPELLANT BY : DR.P.DANIEL RESPONDENT BY : SHRI VI VEK BATRA DATE OF HEARING : 05/08/2014 DATE OF PRONOUNCEMENT : 05 /08/2014 ORDER PER BENCH: ALL THESE APPEALS ARE FILED BY THE ASSESSEE AND T HEY ARE DIRECTED AGAINST THREE SEPARATE ORDERS PASSED BY LD. CIT(A)-4, MUMBA I DATED 05/09/2013 FOR ASSESSMENT YEARS 2001-02, 2002-03, 2003-04. GROUN DS OF APPEAL IN ALL THESE APPEALS ARE IDENTICAL EXCEPT DIFFERENCE OF FIGURE. GROUNDS OF APPEAL FOR A.Y 2001- 02 READ AS UNDER: GROUNDS OF INCOME TAX APPEAL BEFORE THE HONBLE IN COME TAX APPELLATE TRIBUNAL MUMBAI AGAINST THE ORDER U/S 271 (1) (C.) OF THE AC T, PASSED BY CIT (A) 4 MUMBAI RELATING TO ASSTT YEAR 2001-02 1. THAT THE IMPOSITION OF PENALTY U/S 271 (1) (C.) OF THE ACT, AT RS. 3852371/- IS WITHOUT JURISDICTION, QUITE ILLEGAL, ARBITRARY, UNW ARRANTED, UNJUSTIFIED AND BAD IN LAW. ITA NO.5836/MUM/2013, A.Y. 2001-02 ITA NO.5837/MUM/2013, A.Y. 2002-03 ITA NO.5838/MUM/2013, A.Y. 2003-04 2 2. THAT THE LEARNED ASSESSING OFFICER HAS NOT RECOR DED SATISFACTION IN THE BODY OF ASSTT ORDER AND IMPOSITION OF PENALTY ON THE BASIS OF ENHANCEMENT OF INCOME IS QUITE ILLEGAL. 3. THAT THE LEARNED ASSESSING OFFICER ALLOWED THE C OMMISSION EXPENSES IN THE ASSESSMENT ORDER AND ENHANCEMENT SO MADE BY CIT (A) 4 IS ONLY DIFFERENCE OF OPINION BETWEEN TWO ASSESSING OFFICERS AND IMPOSITI ON OF PENALTY IS QUITE ILLEGAL. 4. THAT THE LEARNED CIT (A) 4 HAS NOT CONSIDERED TH E PROPER FACTS OF THE CASE. 5. THAT THE PENALTY ORDER SO PASSED IS QUITE ILLEGA L ARBITRARY, UNWARRANTED, UNJUSTIFIED AND BAD IN LAW. 6. THAT THE APPELLANT FURTHER CREAVE LEAVE TO ADD T O ALTER AND/ OR TO AMEND ANY OF THE AFORESAID GROUNDS OF APPEAL AS AND WHEN NECESSA RY. THE FIGURE MENTIONED IN OTHER ASSESSMENT YEARS IS AS UNDER: A.Y. 2002-03 RS. 1,92,28, 538/- A.Y. 2003-04 RS. 3,02,79, 791/- 3. IN ALL THESE APPEALS ASSESSEE IS CONTESTING THE LEVY OF CONCEALMENT PENALTY ON THE DISALLOWANCES MADE ON ACCOUNT OF INLAND TRAN SPORTATION CHARGES, THE DETAILS OF WHICH ARE AS FOLLOWS: A.Y. 2001-02 RS. 86,00,0 80/- A.Y. 2002-03 RS. 1,31,56,3 23/- A.Y. 2003-04. RS.6,92,10,32 4/- 4. AT THE OUTSET IT WAS POINTED OUT BY LD. AR THAT THE ADDITIONS IN RESPECT OF WHICH CONCEALMENT PENALTY HAS BEEN LEVIED FOR ALL THE THREE YEARS HAVE BEEN DELETED BY ITAT VIDE ORDER DATED 21/2/2014, PASSED IN ITA NO.3050 TO 3052/MUM/2013 FOR ASSESSMENT YEARS 2001-02 TO 2003 -04 RESPECTIVELY. COPY OF THE SAID ORDER WAS PLACED ON OUR RECORD AND WAS ALSO GIVEN TO LD. DR. THE ADDITION WAS DELETED WITH THE FOLLOWING OBSERVATION S: 9. IT IS CLEAR FROM THE ABOVE ORDER THAT THE TRIB UNAL HAS CONSIDERED ALL THE DECISIONS ON THIS POINT AND FINALLY ARRIVAL TO THE CONCLUSION THAT THE PAYMENTS MADE BY THE ASSESSEE AS COMMISSIONER ARE FULLY DEDUCTIBLE AS THE SAID EXPENDITURE WAS INCURRED BY THE ASSESSEE FOR THE PURPOSE OF ITS BUS INESS AND DOES NOT FALL UNDER THE CATEGORY OF AN EXPENDITURE INCURRED FOR ANY PURPOSE WHICH IS AN OFFENCE OR WHICH IS ITA NO.5836/MUM/2013, A.Y. 2001-02 ITA NO.5837/MUM/2013, A.Y. 2002-03 ITA NO.5838/MUM/2013, A.Y. 2003-04 3 PROHIBITED IN LAW IN TERMS OF EXPLANATION TO SECTIO N 37(1). RESPECTFULLY FOLLOWING THE DECISION OF HONBLE KOLKATA HIGH COURT AS WELL AS T HE DECISION OF THE COORDINATE BENCHES OF THIS TRIBUNAL, WE DECIDE THESE GROUNDS I N FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 5. LD. DR DID NOT CONTROVERT TO THE FACT THAT THE A DDITION HAVE BEEN DELETED IN RESPECT OF ALL THE THREE YEARS VIDE AFOREMENTIONED ORDER. 6. IN THIS VIEW OF THE SITUATION, WHEN ADDITION ITS ELF DOES NOT SURVIVE, WE HOLD THAT CONCEALMENT PENALTY IS NOT LEVIABLE. ACCORDIN GLY, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/08/201 4 ! ' #$ % &'( 05/08/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 05/08/2014 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS