ITO 2(3)(4), MUMBAI V. VIVIL EXPORTS P. LTD, MUMBAI

ITA 5970/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88488 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 08-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K BEERLA
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BE NCH, MUMBAI , !' #$% , !& ! ' BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 5970/MUM/2013 ( ( ( ( ( / ASSESSMENT YEAR : 2007-08 THE ITO 2(3)(4), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. VIVIL EXPORTS PVT. LTD., 3-A, DHANNUR BLDG., SIR P.M. ROAD, MUMBAI-400 001 ) !& ./ * ./ PAN/GIR NO. : AAACV 1752B ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY: SHRI P.K. BEERLA ,-)+ / . ! / RESPONDENT BY: MS. NEHA PARANJPE / 01& / DATE OF HEARING :23.02.2015 23( / 01& / DATE OF PRONOUNCEMENT :23.02.2015 !4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-6, MUMBAI DT. 29.7.2013 PERTAINING TO A SSESSMENT YEAR 2007-08. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) HAS ERRED IN DELETING THE PENALTY LEVIED BY THE AO U/S. 271(1 )(C) OF THE ACT. ITA NO. 5970/M/2013 2 3. WHILE COMPLETING THE ASSESSMENT U/S. 143(3) OF T HE ACT, THE ASSESSING OFFICER DISALLOWED THE FOLLOWING AND ADDE D TO THE RETURNED INCOME OF THE ASSESSEE. 1) COMMISSION ON EXPORTS RS. 32,408/- 2) DISALLOWANCE U/S. 40A(IA) TOWARDS TRANSPORTATION RS. 1,59,386/- 3) PAYMENTS TOWARDS EXPORT FREIGHT U/S.40(A)(IA)-RS. 6,17,830/- 4) EXPORT FREIGHT PAID TO FOREIGN SHIPPING COMPANIES DISALLOWED U/S. 40(A)(IA) RS.28,0 2,230/- SIMULTANEOUSLY, PENALTY PROCEEDINGS WERE INITIATED IN RESPECT OF THE AMOUNT DISALLOWED IN THE ASSESSMENT PROCEEDINGS . 4. AGAINST THE QUANTUM ADDITIONS, THE ASSESSEE PREF ERRED APPEAL BEFORE THE LD. CIT(A). HOWEVER, NO GROUND WAS TAKE N FOR THE ADDITION OF COMMISSION ON EXPORTS. THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE ON THE ADDITION OF RS. 28,02,230 IN RESPEC T OF EXPORT FREIGHT PAID TO FOREIGN SHIPPING COMPANIES AND CONFIRMED THE OTH ER DISALLOWANCES MADE BY THE AO. THE PENALTY HAS BEEN LEVIED IN RES PECT OF THE DISALLOWANCES CONFIRMED BY THE LD. CIT(A) AND ALSO ON COMMISSION ON EXPORTS AMOUNTING TO RS. 32,408/-. 5. AGGRIEVED BY THE LEVY OF PENALTY, ASSESSEE CARRI ED THE MATTER BEFORE THE LD. CIT(A). AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) DIRECTED THE AO TO DELETE THE LEVY O F PENALTY. 6. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 7. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE BROUGHT TO OUR NOTICE THE DECISION OF THE TRIBUNAL IN ITA NO. 509/ M/2011 AND STATED THAT THE TRIBUNAL HAS ALLOWED THE APPEAL FOR STATISTICAL PURPOSE. ITA NO. 5970/M/2013 3 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND COULD NOT PLACE BEFORE US ANY CONTRARY JUDGEMENT ON THIS ISSU E. 9. AFTER CONSIDERING THE FACTS AND PERUSING THE ASS ESSMENT ORDER, THE PENALTY ORDER AND THE ORDER OF THE FIRST APPELLATE AUTHORITY AND THE ORDER OF THE TRIBUNAL IN ITA NO. 509/M/11, WE FIND THAT T HE ISSUE RELATING TO THE DISALLOWANCE OF RS. 1,59,386/-, 6,17,830/- AND RS. 3,70,062/- HAVE BEEN RESTORED BACK TO THE FILES OF THE AO FOR VERIFICATI ON AS PER THE DIRECTIONS OF THE TRIBUNAL IN ITA NO. 509/M/11. WE, THEREFORE SET ASIDE THE ORDER OF THE PENALTY TO THE EXTENT OF THE QUANTUM ADDITIO NS SET ASIDE BY THE TRIBUNAL. THE AO IS DIRECTED TO CONSIDER THE ISSUE AFRESH AFTER DECIDING THE QUANTUM. THE ONLY ADDITION WHICH SURVIVES IS T HAT OF COMMISSION ON EXPORTS AMOUNTING TO RS. 32,408/-. WE FIND THAT DU RING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS STATED THA T RS. 32,408/- IS EXCHANGE DIFFERENCE AND IS CLAIMED AS EXPENDITURE B Y MISTAKE AND AGREED FOR THE ADDITION. IN OUR CONSIDERED OPINION ONCE T HE MISTAKE HAS BEEN ACCEPTED BY THE ASSESSEE, WE DO NOT FIND ANY REASON FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. WE, ACCORDINGLY DIRECT THE AO TO DELETE THE LEVY OF PENALTY IN RESPECT OF THE DISALLOWANCE OF RS. 32,408/-. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 23 RD FEBRUARY, 2015. SD/- SD/ (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 5 DATED : 23 RD FEBRUARY, 2015 . . ./ RJ , SR. PS ITA NO. 5970/M/2013 4 !4 !4 !4 !4 / // / ,0 ,0 ,0 ,0 6!(0 6!(0 6!(0 6!(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 89 ,0 , , / DR, ITAT, MUMBAI 6. 9: / GUARD FILE. !4 !4 !4 !4 / BY ORDER, -0 ,0 //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI