JCIT (OSD) RG 8(1), MUMBAI V. COMMERCIAL LEASING CORPORATION P.LTD, MUMBAI

ITA 5885/MUM/2012

• Counselvise Citation: 588519914 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-03-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 27-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: DR P DANIEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI R.C SHARMA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 5885/MUM/2012 ASSESSMENT YEAR: 1997-98 JCIT (OSD) RG-8(1) MUMBAI-.400 020 VS. M/S. COMMERCIAL LEASING CORPORATION PVT. LTD 1, JUHU LANDMARK CO-OP HOUSING SCO. LTD. PLOT NO. 37, GULMOHAR ROAD, OPP. JUHU SUPREME SHOPPING CENTRE, BUS STOP, JVPD, SCHEME, VILE PARLE (W), MUMBAI.400 049 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAACC 4613 J ASSESSEE BY : DR. P. DANIEL REVENUE BY : SHRI M. L. PERUMAL DATE OF HEARING : 04.03.2014 DATE OF PRONOUNCEMENT : 07.03.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD.CIT(A)-16, MUMBAI DATED 04.07.2012 FOR THE ASSES SMENT YEAR 1997-98 DELETING THE PENALTY OF RS.4,87,980/- LEVIED BY THE AO IN RE SPECT OF ADDITION MADE ON ACCOUNT OF LEASE EQUALIZATION RESERVE AND PROVISION FOR GRA NTING LEAVE SALARY WHILE COMPUTING BOOK PROFIT U/S 115JA OF THE INCOME-TAX ACT. 2. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS OBSERVED THAT IN THE QUANTUM PROCEEDING (ITA NO. 65 70/MUM/2010), THE TRIBUNAL HAS HELD THAT THE AMOUNT OF LEASE EQUALIZATION CHAR GES CANNOT BE ADDED TO THE PROFIT FOR THE PURPOSE OF SECTION 115JA AND THEREBY DELETE D THE ADDITION WHICH IS VERY BASIS ON WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED . SINCE THE ADDITION IS DELETED ITA NO. 5885/MUM/2012 M/S. COMMERCIAL LEASING CORPORATION PVT. LTD ASSESSMENT YEAR: 1997-98 2 BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS, THE VER Y BASIS ON WHICH THE PENALTY HAS BEEN LEVIED DOES NOT EXIST. THE LD.DR COULD NOT SHO W THE REVERSAL OR THE MODIFICATION OF THE ORDER PASSED BY THE TRIBUNAL. I N VIEW OF THE FACT THAT QUANTUM ADDITION HAS BEEN FINALLY DELETED BY THE TRIBUNAL, IN OUR CONSIDERED OPINION THERE REMAINS NO BASIS FOR CONFIRMING ANY PENALTY U/S 271 (1)(C), WHICH IS IN EFFECT CONSEQUENTIAL TO THE QUANTUM ORDER. MOREOVER IT IS RELEVANT TO STATE THAT THE IMPUGNED PENALTY IS NOT SUSTAINABLE CONSIDERING THE FACT THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME IN ACCORDANCE WITH THE SPECIAL PROVISION OF 115JA AND THE ASSESSMENT HAS ALSO BEEN COMPLETED IN ACCORDANCE WI TH THE SAID PROVISIONS. THERE ARE PLETHORA OF DECISIONS TO SUPPORT THE PROPOSITIO N THAT PENALTY CANNOT BE LEVIED ON THE BASIS OF ADDITIONS MADE IN THE ASSESSMENT COMPL ETED UNDER THE SPECIAL PROVISIONS LIKE 115JA OF THE ACT. SOME OF THE DECIS IONS ARE THE DECISION OF THE DELHI HIGH COURT IN THE CASES OF CIT VS. NALWA SONS INVESTMENT LTD. 327 ITR 543 (SLP FILED IN THE HONBLE APEX COURT BY THE REVENUE AGAI NST THE DECISION OF THE DELHI HIGH COURT HAS BEEN DISMISSED ON 26.08.2010) , UNISON HOTELS LTD. VS. DCIT AND ACIT VS. SERI INFRASTRUCTURE FINANCE LTD. 154 TTJ 111 AND THE DECISIONS OF THE TRIBUNAL IN TH E CASES OF DCIT VS. USHDEV INTERNATIONAL LTD. 129 ITD 167 AND BSEL INFRASTRUCTURE REALTY LTD. VS. ACIT 150 TTJ 159. IN VIEW OF THE AFOREMENTIONED DISCUSSI ON, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WITH T HE ORDER OF THE LD.CIT(A) DELETING THE IMPUGNED PENALTY AND THUS THE SAME IS UPHELD. 3. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 TH DAY OF MARCH, 2014. SD/- SD/- (R.C. SHARMA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 07.03.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.