ACIT CEN CIR 2, THANE V. RASIKLAL HIRJI SHAHA, MUMBAI

ITA 6036/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1177 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 16-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: M P MAKHIJA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NOS.6036 & 6037/MUM/2009 : ASST.YEARS 2005-200 6 & 2006-2007 THE ASSTT.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 2 THANE. VS. SHRI RASIKLAL HIRJI SHAH PROP. M/S.JAYSHREE ENTERPRISES PRITESH COMPLEX, DAPODA ROAD BHIWANDI. PA NO.ADNPK2012J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JITENDRA YADAV RESPONDENT BY : S/SHRI M.P.MAKHIJA & SUNIL MAKHIJA O R D E R PER R.S.SYAL, AM : THESE TWO APPEALS BY THE REVENUE ARISE OUT OF THE ORDERS PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 25.8.2009 I N RELATION TO THE ASSESSMENT YEARS 2005-2006 AND 2006-2007 CANCELLING THE PENALT Y IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE ACT. 2. FILTERING OUT UNNECESSARY DETAILS IT WOULD BE RE LEVANT TO TAKE NOTE OF THE CHRONOLOGICAL EVENTS, AS STATED BY THE LD. DR. ASS ESSMENT ORDER FOR ASSESSMENT YEAR 2005-2006 WAS PASSED BY THE A.O. U/S. 143(3) O N 26.12.2007. THEREAFTER PENALTY ORDER U/S.271(1)(C) WAS PASSED BY THE A.O. ON 12.06.2008. THE LEARNED CIT PASSED ORDER U/S.263 ON 17.6.2008. THE ASSESSEE PRE FERRED APPEAL BEFORE THE TRIBUNAL AGAINST THE REVISIONAL ORDER U/S.263. VIDE ORDER DATED 26.11.2008 THE TRIBUNAL, SET ASIDE THE REVISIONAL ORDER AND RESTO RED THE MATTER BACK TO THE FILE OF THE LEARNED CIT FOR FRESH ADJUDICATION. IN THE MEAN TIME THE LEARNED CIT(A) PASSED THE IMPUGNED ORDER ON 25.8.2009 DELETING THE PENALT Y ON THE GROUND THAT THE ASSESSMENT ORDER HAS BEEN SET ASIDE BY THE CIT U.S. 263 AS A RESULT OF WHICH PENALTY PROCEEDINGS CANNOT SURVIVE. IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LEARNED A.R. THAT PURSUANT TO THE DIRECTION GIVEN BY THE TRIBUNA L RESTORING THE MATTER TO THE FILE ITA NOS.6036 & 6037/MUM/2009 SHRI RASIKLAL HIRJI SHAH. 2 OF CIT, FRESH ORDER HAS BEEN PASSED U/S.263 ON 23.3 .2010. THE LEARNED A.R. FAIRLY CONCEDED THAT NO APPEAL HAS BEEN FILED BY THE ASSES SEE AGAINST SUCH ORDER U/S.263 BEFORE THE TRIBUNAL. IT WAS STATED THAT THE ASSESSI NG OFFICER HAS STILL TO GIVE EFFECT TO THE ORDER PASSED U/S.263 ON 23.3.2010. 3. WHEN WE LOOK AT THE ABOVE SAID DATES IT BECOMES PATENT THAT THE ISSUE HAS GONE BACK TO THE ASSESSING OFFICER IN QUANTUM PROCE EDINGS PURSUANT TO THE ORDER PASSED BY THE CIT U/S.263 ON 23.3.2010. THE HONBLE SUPREME COURT IN THE CASE OF MOHD MOHATRAM FAROOQUI VS. CIT [(SC) 2010-TIOL-23-S C-IT] HAS HELD THAT WHEN THE QUANTUM ADDITION HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER, PENALTY U/S.271(1)(C) SHOULD ALSO CONSEQUENTLY BE R ESTORED. ACCORDINGLY WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF A.O. FOR CONSIDERING THE IMPOSITION OR OTHERWISE OF PENALTY U/S.271(1)(C ) IN THE LIGHT OF FRESH ASSESSMENT ORDER LIKELY TO BE PASSED BY HIM. 4. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS A ND CIRCUMSTANCES OF ASSESSMENT YEAR 2006-2007 ARE IDENTICAL TO THOSE OF ASSESSMENT YEAR 2005-2006. FOLLOWING THE VIEW TAKEN HEREINABOVE WE SET ASIDE T HE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF A.O. 5. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 9 TH DAY OF JULY, 2010. SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 9 TH JULY, 2010 . DEVDAS* ITA NOS.6036 & 6037/MUM/2009 SHRI RASIKLAL HIRJI SHAH. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-I, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.