DCIT CENT. CIR. 4(1), MUMBAI V. OBEROI CONSTRUCTIONS, MUMBAI

ITA 5998/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5574 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 07-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Section: 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 5998 / MUM/ 201 6 ( / ASSESSMENT YEAR: 20 1 1 - 12 ) DCIT CENTRAL CIRCLE - 4(1), MUMBAI R. NO. 1916, 19 TH FLOOR, AIR I NDIA BUILDING, NARIMAN POINT, MUMBAI - 400021. / VS. M/S. OBEROI CONSTRUCTIONS, COMMERZ, 3 RD FLOOR, INTERNATIONAL BUSINESS PARK, OBEROI GARDEN CITY, OFF. W.E. HIGHWAY, GOREGAON (E), MUMBAI - 400063. ./ ./ PAN/GIR NO. : AAACO 1805 E ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 08 . 0 5 .201 8 / DATE OF PRONOUNCEMENT : 3 1.07 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 22 . 07 .201 6 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 52 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 11 - 1 2 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ' 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CLT1A} HAS ERRED IN DELETING PENALTY U/S 27L(L)(C) ON ACCOUNT OF PENALTY PAYMENT MADE TO BMC FOR UNAUTHORIZE D CONSTRUCTION AND FINE PAID TO CUSTOM AUTHORITIES FOR IMPORTING MARBLES WITHOUT REVENUE BY : SHRI RAM TIWARI (A R) ASSESSEE BY: SHRI SAUMIL DARU ITA NO. 5998 /M/2016 A.Y.20 11 - 12 2 LICENSE AS IT IS NOT ALLOWABLE AS PER EXPLANATION TO SECTION 37(1) OF THE INCOME TAX ACT, 1961 AND PENALTY IS LEVIABLE FOR PRODUCING INACCURATE INFORMATION AND CONCEALMENT OF INCOME?' 2. 'THE APPELLANT CRAVES TO LEAVE, TO ADD, TO AMEND AND / OR TO ALTER ANY OF THE GROUND OF APPEAL, IF NEED BE.' THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROUND STATED ABOVE, THE ORDER OF THE LD CIT(A) - 52, MUMBAI MAY BE SET ASIDE GRID THAT OF TH E ASSESSING OFFICER RESTORED. 3 . THE PRES ENT APPEAL IS TIME BARRED FOR 20 DAYS WHICH IS NOT SO DELAYED THEREFORE, ON SEEING THE CIRCUMSTANCES THAT THE MATTER OF CONTROVERSY IS REQUIRED TO BE DECIDED ON MERITS, THEREFORE, WE CONDONE THE DELAY . WE HAVE HE ARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. AT THE VERY OUTSET, T HE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT(A) HAS DELETED THE PENALTY ON MERITS BY RELYING UPON THE LAW SETTLED BY THE DIFFER ENT AUTHORITIES OF LAW, THEREFORE, THERE IS NO NEED TO INTERFERE WITH THE ORDER OF THE CIT(A) IN ACCORDANCE WITH LAW. IT IS ALSO ARGUED THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY HAS BEEN LEVIED , HAS BEEN D EL E TED BY HONBLE ITAT IN THE ASSESSEES OWN CASE FOR THE A.Y. 2012 - 13 IN ITA. NO.6694/M/2014 DATED 19.05.2017, THEREFORE, THE PENALTY HAS NO LEG TO STAND HENCE THE CIT(A) HAS RIGHTLY DELETED THE PENALTY . HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CO NTENTION. ON APPRAISAL OF THE ORDER, WE NOTICED THAT THE PENALTY HAS BEEN LEVIED BY THE AO UPON THE AMOUNT OF RS.32,66,990/ - PAID AS PENALTY TO THE BMC MUMBAI. UNDOUBTEDLY, THE CIT(A) HAS DELETED THE PENALTY ON THE BASIS OF THE LAW SETTLED IN PRICE WATERHO USE COOPERS PVT. LTD. VS. CIT - (2012) 348 ITR 0306 (SC) , KANBAY SOFTWARE INDIA PVT. LTD. (122 TTJ 721) & CIT VS. R ELIANCE PETROPRODUCTS PVT. LTD. (SUPRA) , CIT VS.CAPLIN POINT LABORATORIES LTD. (293 ITR 254), CIT VS. HARSHVARDHAN CHEMICALS & MINERAL LTD. (25 9 ITA NO. 5998 /M/2016 A.Y.20 11 - 12 3 ITR 212 (2003), CIT VS. S.M. CONSTRUCTION (ITA. NO. 41 2 OF 2013 ETC. ANYHOW, AT THE STAGE, THERE IS NO NEED TO INTERFERE IN THE FINDING OF THE CIT(A) BECAUSE THE ADDITION ON WHICH THE PENALTY HAS BEEN LEVIED, HAS BEEN DELETED BY HONBLE ITAT BY VIRTUE OF ORDER DATED 19.05.2017 IN ITA. NO.6694/M/2014 FOR THE A.Y.2011 - 12 . SINCE THE ADDITION HAS BEEN DELETED, THEREFORE, IN THE SAID CIRCUMSTANCES, THE PENALTY HAS NO LEG TO STAND HENCE THE PENALTY HAS BEEN RIGHTLY DELETED BY THE CIT(A) . ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE AND DISMISSED THE APPEAL OF THE REVENUE. 4 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.07. 2018 . SD/ - SD/ - ( G. S. PANNU ) ( AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 31.07 . 2018 VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUA RD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI