ACIT LTU, MUMBAI V. DEPOSIT INSURANCE & CREDIT GUARANTEE CORPORATION, MUMBAI

ITA 6003/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8198 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 12-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CULLA MUMBAI PAN NO AAACDE VS
• Keywords: Reassessment proceedings
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI R.S. PADVEKAR, J.M. I.T.A. NO.: 6003/MUM/2009 ASSESSMENT YEAR : 2001-02 ACIT LTU 29 TH FLOOR, CENTRE-1, WORLD TRADE CENTRE, CUFFE PARADE, MUMBAI-400 005 M/S. DEPOSIT INSURANCE & CREDIT GUARANTEE CORPORATION RBI BLDG, OPP. MUMBAI CENTRAL RAILWAY STATION, NEAR MARATHA MANDIR, BYCULLA, MUMBAI 400 008 PAN NO: AAACD2094E (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SMT. REENA JHA TRIPATHI RESPONDENT BY : NONE ORDER PER R. S. PADVEKAR (J.M.) : IN THIS APPEAL REVENUE HAS CHALLENGED THE IMPUGNE D ORDER OF THE LD. CIT(A), MUMBAI DATED 03.08.2009 FOR THE ASSESSMENT YEAR 2001-02. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A), ERRED IN DELETING T HE PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT, 1961 O N ACCOUNT OF DIFFERENCE OF BALANCE OF FUNDS ON ACTUAR IAL BASIS. 3. THIS APPEAL IS ARISING OUT OF THE PENALTY LEVIE D BY THE AO U/S.271(1)(C) OF THE I. T. ACT, 1961. THE ASSESSMENT OF THE ASSES SEE WAS COMPLETED U/S.143(3) OF THE I.T. ACT DATED 17.12.2003, DETERM INING THE TOTAL INCOME AT ` . 8,38,31,88,160/-. SUBSEQUENTLY, THE REASSESSMENT PR OCEEDINGS WERE INITIATED AND THE ASSESSMENT WAS COMPLETED U/S.144 READ WITH SECTION 148 DETERMINING THE TOTAL INCOME AT ` . 13,78,45,88,160/-. 2 4. THE AO HAS MADE THE FOLLOWING ADDITIONS :- 1. ESTIMATED CLAIM IN RESPECT OF DEPOSIT INDUSRANCE BUSINESS ` 5,16,93,00,000/- 2. ESTIMATED CLAIM IN RESPECT OF CREDIT GUARANTEE BUSINESS ` .4,16,00,000/- 3. DIFFERENCE IN CREDIT AND DEBIT OF OPENING BALANCE ` 19,05,00,000/- 3. THE ASSESSEE HAS CHALLENGED THE ABOVE ADDITIONS BEFORE THE LD. CIT(A) AND FIRST TWO ADDITIONS WERE DELETED BY THE LD. CIT (A). IN RESPECT OF THE THIRD ADDITION, SAME WAS SUSTAINED BY THE LD. CIT(A). THE AO LEVIED THE PENALTY U/S.270(1)(C) OF THE ACT ON THE REASON FOR FURNISHI NG AN INACCURATE PARTICULARS OF ITS INCOME WHICH WAS TO THE EXTENT O F ` 7,53,42,750/-. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LD . CIT(A) AND FOUND FAVOUR. THE LD. CIT(A) DELETED THE PENALTY AS HE W AS OF THE OPINION THAT ALL THE MATERIAL FACTS WERE DISCLOSED BY THE ASSESSEE A ND THERE WAS NO JUSTIFICATION TO LEVY THE PENALTY. NOW, THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AT THE FIRST INSTANCE T HE REVENUE COULD NOT PRODUCE THE COD FOR FILING THE PRESENT APPEAL, AND HENCE THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. THE LD. COUNSEL FU RTHER SUBMITTED THAT IN RESPECT OF THE ADDITION OF ` 19,05,00,000/- MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A), THE ASSESSEE CHALLENGED THE SAME BEFORE THE TRIBUNAL, AND TRIBUNAL QUASHED THE PROCEEDINGS INITIATED BY THE A .O. U/S.147 OF THE ACT AT ENTIRETY AND ALLOWED THE GROUND TAKEN BY THE ASSESS EE CHALLENGING THE VALIDITY OF REOPENING PROCEEDINGS RESORTED BY THE A O U/S.147 OF THE ACT. THE LD. COUNSEL ALSO FILED THE COPY OF THE TRIBUNAL ORD ER AND SAID COPY IS PLACED ON RECORD. WE HAVE ALSO HEARD THE LD. DR. 5. IT IS SEEN THAT THE ADDITION OF ` 19,05,00,000/- IS IN RESPECT OF DIFFERENCE IN CREDIT AND DEBIT OF OPENING BALANCES WAS MADE IN THE REASSESSMENT PROCEEDINGS. THE A.O. COMPLETED THE A SSESSMENT UNDER SEC. 144 R/W SECTION 148 OF THE ACT, DATED 29.12.2006. T HE ASSESSEE CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS BEFORE THE TRIBUNAL AND TRIBUNAL QUASHED THE REASSESSMENT PROCEEDINGS RESOR TED BY THE AO U/S.147 3 AT ENTIRETY. HENCE, THE ADDITION DOES NOT SURVIVE W HICH IS THE BASE FOR THE LEVY OF THE PENALTY AND AS THE BASE FOR THE LEVY OF THE PENALTY ITSELF HAS GONE, THE PENALTY ALSO DOES NOT SURVIVE. WE, THEREFORE, C ONFIRM THE ORDER OF THE LD. CIT(A) ON MERIT. WE DO NOT CONSIDER IT NECESSARY TO GO INTO THE OBJECTION OF THE COD APPROVAL. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED ON THIS 25 TH DAY OF FEBRUARY, 2011. SD/- SD/- ( R.S. SYAL ) ( R.S. PADVEK AR ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT: 25 TH FEBRUARY, 2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, D - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI