NIRMAN CONSTRUCITON, MUMBAI V. ACIT 20(2), MUMBAI

ITA 6191/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75394 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: K K LALKAKA
• Keywords: Reasonable cause
• Section: 143(3); 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . , , , BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUD ICIAL MEMBER . / ITA NO. 6191 / MUM./ 2011 ( / ASSESSMENT YEAR : 20 0 7 08 ) M/S. NIRMAN CONSTRUCTION 14, NYAY SAGAR, OLD NAGARDAS ROAD NEAR CHINOY COLLEGE, ANDHERI (E) MUMBAI 400 069 .. / APPELLANT V/S ASSTT . COMMISSIONER OF INCOME TAX CIRCLE 20(2), MUMBAI .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AACFN8428K / ASSESSEE BY : MR. K.K. LALKAKA / REVENUE BY : MR. SURENDRA KUMAR / DATE OF HEARING 09 . 01 .201 4 / DATE OF ORDER 15.01.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE CHALLEN GING THE IMPUGNED ORDER DATED 5 TH AUGUST 2011 , PASSED BY THE COMMISSIONER (APPEALS) X X X I , MUMBAI, IN RELATION TO PENALTY PROCEEDINGS UNDER SECTION 221 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 07 08 , ON THE FOLLOWING GROUN DS: M/S. NIRMAN CONSTRUCTION 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN PARTIALLY SUSTAINING THE PENALTY OF ` 3,28,407 AGAINST THE PENALTY LEVIED BY THE A.O. OF ` 16,42,037 ALTHOUGH THE ASSESSEE HAD ESTABLISHED GOOD AND SUFFICIENT CAUSE FO R NON IMPOSITION OF PENALTY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE I THE LEI. CIT (A) HAS ERRED IN HOLDING THAT THE A.O. WAS JUSTIFIED IN INCLUDING INTEREST CHARGEABLE U/S 234B AND 234C WHILE IMPOSING PENALTY ALTHOUGH TAX IS DEFINED U/S 2(4 3) OF THE ACT MEANS INCOME TAX CHARGEABLE UNDER THE PROVISIONS OF THE ACT AND DOES NOT INCLUDE INTEREST AND PENALTY. 2 . THE FACTS, APROPOS THE LEVY OF PENALTY UNDER SECTION 221 OF THE ACT ARE THAT , T HE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND REAL ESTATE DEVELOPER. IT HAS FILED ITS RETURN OF INCOME FROM 29 TH OCTOBER 2007, DECLARING TOTAL INCOME OF ` 47,15,420. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS NOT PAID THE SE LF ASSESSMENT TAX ALONG WITH THE INTEREST BEFORE FILING OF THE RETURN OF INCOME IN VIEW OF THE PROVISIONS OF SECTION 140A. ACCORDINGLY, THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE UNDER SECTION 140A(3) R/W SECTION 221 ON 9 TH FEBRUARY 2010 AFTER THE COMP LETION OF THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 30 TH DECEMBER 2009 . IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE SUBMITTED AND STATED AS UNDER: PLEASE REFER TO YOUR ABOVE REFERRED SHOW CAUSE NOTICE DATED 9 TH FEBRUARY 2010 WHICH WAS RECEIVED ON 11 TH FEBRUARY 2010. FIRSTLY, WE WOULD LIKE APOLOGISE FOR THE DELAY IN PAYMENT OF SELF ASSESSMENT TAX FOR THE ABOVE REFERRED YEAR; WHICH WAS DUE TO FOLLOWING CONSTRAINTS AT OUR END: 1 . OUR COMPANY WAS HAVING LIQUIDITY CRUNCH AND WAS THE PRIM E REASON FOR DELAY IN PAYMENTS. 2 . OUR AUDITORS AND TAX CONSULTANTS HAD RESIGNED AND THERE WAS TIME LAG IN APPOINTMENT TO FILL THE VACANCY. 3 . MANPOWER CONSTRAINTS AS COUPLE OF KEY EMPLOYEES OF ACCOUNTS DEPARTMENT LEFT IN SHORT SPAN OF TIME. M/S. NIRMAN CONSTRUCTION 3 FURTHER WE WOULD LI KE TO BRING TO YOUR NOTICE A FACT THAT ALL THESE SELF ASSESSMENT TAX DUES WERE DISCHARGED FEBRUARY 2008 ON OUR OWN WITHOUT ANY ACTION FROM THE DEPARTMENT. ON THE BASIS OF ABOVE SAID GROUNDS YOU ARE HUMBLY REQUESTED TO DO THE NEEDFUL AND CONDONE THE DELAY IN PAYMENT OF SELF ASSESSMENT TAX AND DROP THESE PROCEEDINGS. 3 . THE ASSESSING OFFICER REJECTED THE ASSESSEES EXPLANATION AND HELD THAT THERE IS NO NEXUS BETWEEN THE GOVERNMENT TAX DUES AND THE REASONS CITED BY THE ASSESSEE. THE TAX DUES UNDER SELF ASSESSM ENT TAX IS MANDATORY BEFORE FILING OF THE RETURN OF INCOME. AFTER REFERRING TO THE PROVISIONS OF SECTION 140A, HE HELD THAT IT IS A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 221(1) AND LEVY 100% PENALTY OF ` 16,42,037 BEING AN AMOUNT EQUAL TO SELF ASSESSM ENT TAX NOT PAID BEFORE THE FI LING OF THE RETURN OF INCOME. THE COMPUTATION OF THE PENALTY HAS BEEN DONE AS UNDER: RETURN OF INCOME FOR A.Y. 2007 08 FILED ON 29.10.2007 INCOME DECLARED : ` 47,15,420 INCOME TAX ON RETURNED INCOME ` 14,14,626 SURCHARGE ` 1,41,463 EDUCATION CESS ` 31,122 TOTAL TAX PAYABLE ` 15,87,211 LESS: ADVANCE TAX PAID ` 2,00,000 BALANCE TAX PAYABLE ` 13,87,211 ADD: 1) INTEREST U/S 234B ` 97,105 2) INTEREST U/S 234C ` 1,57,721 SELF ASSESSMENT TAX PAYABLE ` 16,42,037 4 . BE FORE THE LEARNED COMMISSIONER (APPEALS), THE ASSESSEE REITERATED THE SAME CONTENTION AS WAS RAISED BEFORE THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT DUE TO BUSINESS EXIGENCIES M/S. NIRMAN CONSTRUCTION 4 BEYOND THE CONTROL OF THE ASSESSEE AND LACK OF FUNDS, THE ASSESSEE COU LD NOT PAY THE SELF ASSESSMENT TAX. EVEN WITHOUT RECEIVING ANY INTIMATION OR NOTICE FROM THE DEPARTMENT, THE ASSESSEE PAID THE SELF ASSESSMENT TAX ON 11 TH FEBRUARY 2008 I.E., AFTER THREE MONTHS. REGARDING THE LIQUIDITY CRUNCH, THE ASSESSEE SUBMITTED THAT A LMOST ALL ITS FUNDS WERE PARKED IN THE CONSTRUCTION WORK AND THE PROJECT WORK I N PROGRESS WAS AT ` 7.27 CRORES. BESIDES THIS, THE ASSESSEE HAS ALSO MADE ADVANCE FOR THE FUTURE DEVELOPMENT OF THE PROPERTY TO THE EXTENT OF ` 70.20 LAKHS. AT THE TIME OF FILIN G OF THE RETURN OF INCOME, THE ASSESSEE DID NOT HAD SUFFICIENT FUNDS TO IMMEDIATELY PAY THE SELF ASSESSMENT TAX. ACCORDINGLY, THERE WAS A REASONABLE CAUSE AND DEFAULT FOR NON - PAYMENT OF SELF ASSESSMENT TAX WAS DUE TO BONAFIDE REASONS. THEREFORE, IN VIEW OF THE SECOND PROVISO TO SECTION 221, PENALTY SHOULD NOT BE LEVIED. ALTERNATIVELY, IT WAS ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS LEVIED 100% PENALTY LOOKING TO THE FACT THAT IN THE PAST, THE ASSESSEE HAS NEVER DEFAULTED IN COMPLYING WITH THE PAYMENT O F SELF ASSESSMENT TAX NOR IT HAS BEEN DONE IN THE SUBSEQUENT YEARS. RELIANCE WAS ALSO PLACED ON CERTAIN DECISIONS WHEREIN IT HAS BEEN HELD THAT PENALTY CANNOT BE JUSTIFIED IF THERE ARE SUFFICIENT OR REASONABLE CAUSE FOR THE DEFAULT COMMITTED BY THE ASSESSE E. THESE CASE LAWS HAVE BEEN MENTIONED IN PARA 2.2.2 OF THE APPELLATE ORDER. 5 . THE LEARNED COMMISSIONER (APPEALS) CALLED FOR THE DETAILS OF CLOSING BANK BALANCES INCLUDING CASH IN HAND AS PER THE BOOKS OF ACCOUNT AS ON 1 ST APRIL 2007 AND 31 ST OCTOBER 2007 T HE DETAILS OF WHICH HAVE BEEN REPRODUCED AT PAGE 5 OF THE APPELLATE ORDER IN PARA 2.3. AFTER ANALYZING THE AFORESAID DETAILS, THE LEARNED COMMISSIONER (APPEALS) DREW FOLLOWING INFERENCES: FROM THE ABOVE CHART IT CAN BE SEEN THAT AS ON 01.04.2007 AND AS ON 01.10.2007 THE APPELLANT HAD SUFFICIENT CASH BALANCE IN ITS BOOKS OF M/S. NIRMAN CONSTRUCTION 5 ACCOUNTS I.E. AN AMOUNT OF RS.38,40,621/ - ( TOTAL DEBIT BALANCE) AS ON 01.04.2007 AND RS.14,05,159/ - (DEBIT BALANCE) AS ON 31.10.2007. FOR THIS PURPOSE ONLY THE DEBIT BALANCES IN ITS V ARIOUS BANK ACCOUNTS HELD BY THE APPELLANT ARE TAKEN INTO CONSIDERATION. ALTHOUGH, THE APPELLANT HAS SHOWN NET CREDIT BALANCE OF RS.91,576.1) IN THE ABOVE CHART AS ON 31.10.2007 WHICH IS DUE TO THE CREDIT BALANCE OF RS.14,96,739/ - IN ITS BANK ACCOUNT NO.2 018 MAINTAINED WITH IDBI. AT THE SAME TIME IT IS SEEN THAT THE APPELLANT HAS DEBIT BALANCE TO THE TUNE OF RS.14,15,159/ - IN ITS VARIOUS BANK ACCOUNTS ON 31.10.2007. IT TOO HAS SUFFICIENT SUCH BANK BALANCE AS ON 01.04.2007 TO EASILY MEET OUT ITS SELF ASSESS MENT TAX LIABILITY. THE APPELLANT COULD NOT FURNISH THE DETAILS OF CASH IN HAND AS 01.04.2007 AND ON 31.10.2007. THEREFORE, FROM THE POSITION OF CASH BALANCE IN ITS VARIOUS BANK ACCOUNTS AS REPRODUCED ABOVE, I FIND THAT THE APPELLANT HAS SUFFICIENT FUNDS A T ITS DISPOSAL TO MEET ITS LIABILITY OF PAYMENT OF SELF ASSESSMENT TAX ON TIME. IT MAY ALSO BE NOTICED THAT THE APPELLANT IS REGULARLY ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF VARIOUS PROJECTS DURING THIS PERIOD HAVING SUFFICIENT OR REASO NABLE AMOUNT OF FUNDS AT ITS DISPOSAL. THEREFORE, ON ACCOUNT OF THESE FACTS IT CANNOT BE HELD THAT THE APPELLANT WAS HAVING ACUTE FINANCIAL DIFFICULTIES OR LIQUIDITY CRUNCH TO THE EXTENT THAT IT COULD NOT MAKE THE PAYMENT OF SELF ASSESSMENT TAX ON TIME. 6 . AS REGARDS CHARGEABILITY OF INTEREST UNDER SECTION 234B AND 234C, THE LEARNED COMMISSIONER (APPEALS) HELD THAT THE PROVISIONS OF THE ACT ARE VERY CLEAR AND THEY ARE CONSEQUENTIAL. HOWEVER, THE LEARNED COMMISSIONER (APPEALS) REDUCED THE QUANTUM OF PENALTY TO 20% AND RESTRICTED THE PENALTY AT ` 3,28,407 ON THE GROUND THAT THE ASSESSEE HAS PAID THE ENTIRE SELF ASSESSMENT TAX WITH THE MARGINAL DELAY OF THREE MONTHS AND THAT THE ASSESSEE HAS NEVER BEEN AT DEFAULT EARLIER AND THIS WAS THE FIRST TIME DEFAULT. 7 . BE FORE US, THE LEARNED COUNSEL, MR. K.K. LALKAKA, ON BEHALF OF THE ASSESSEE, REITERATING THE EXPLANATION AND THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW, SUBMITTED THAT THE ASSESSEE ACTUALLY DID NOT HAD ANY SUFFICIENT FUNDS TO PAY THE SELF ASSESSMENT T AX AT THE TIME OF FILING OF THE RETURN OF INCOME. IMMEDIATELY , WHEN THE ASSESSEE HAD THE FUNDS, HE DEPOSITED THE SAME TO THE GOVERNMENT EXCHEQUER IN THREE MONTHS. HE ALSO REITERATED THAT THE ASSESSEE HAS NEVER DEFAULTED FOR M/S. NIRMAN CONSTRUCTION 6 PAYMENT OF TAX EITHER SELF ASSES SMENT OR ASSESSED TAX IN THE EARLIER YEARS OR IN THE SUBSEQUENT YEARS. THE ASSESSEE HAS EVEN DEPOSITED THE PENALTY AMOUNT. THE INTENTION OF THE ASSESSEE WAS NEVER TO DELAY THE SELF ASSESSMENT TAX PURPOSELY , BUT IT WAS DUE TO EXTREME BUSINESS EXIGENCIES AND LACK OF FUNDS THAT THE ASSESSEE COULD NOT PAY THE SELF ASSESSMENT TAX AT THE TIME OF FILING OF THE RETURN OF INCOME. THIS YEAR, IT WAS ONLY A ONE TIME DEFAULT AND, THEREFORE, THE ASSESSEE SHOULD NOT BE PENALIZED WITH THE LEVY OF PENALTY. 8 . REGARDING THE L EARNED COMMISSIONERS OBSERVATION THAT THE R E WERE DEBIT BALANCE AS ON 31 ST OCTOBER 2007 TO THE TUNE OF ` 14,15,159 IN VARIOUS BANK ACCOUNT, HE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) HAS FAILED TO APPRECIATE THAT OVER ALL THERE WAS A CREDIT BALAN CE OF ` 91,576 AS ON 31 ST OCTOBER 2007. THIS WAS DUE TO THE FACT THAT IN CASH CREDIT ACCOUNT WITH IDBI, THE ASSESSEE HAD A HUGE CREDIT BALANCE OF ` 14,96,740. IF ALL THE ACCOUNTS ARE TAKEN INTO CONSIDERATION, THEN INSTEAD OF DEBIT BALANCE, THERE WAS LIABIL ITY UPON THE ASSESSEE TO THE BANK AND, HENCE, SUCH AN INTERPRETATION BY THE LEARNED COMMISSIONER (APPEALS) FOR COMING TO THE CONCLUSION THAT THE ASSESSEE HAD SUFFICIENT FUNDS, IS NOT CORRECT. THUS, HE SUBMITTED THAT IN VIEW OF THE SECOND PROVISO TO SECTION 221, NO PENALTY SHOULD BE LEVIED AS THERE WAS REASONABLE AND SUFFICIENT CAUSE FOR NOT MAKING THE PAYMENT OF SELF ASSESSMENT TAX AT THE TIME OF FILING OF THE RETURN OF INCOME. 9 . ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IT IS A STATUTORY MANDATE THAT THE ASSESSEE HAS TO FILE SELF ASSESSMENT TAX BEFORE FILING OF THE RETURN OF INCOME. SUCH SELF ASSESSMENT TAX CANNOT BE WAIVED OFF AND THERE IS NO DISCRETION PROVIDED UNDER THE LAW. IF SUCH TAX HAS NOT BEEN PAID, THEN THE ASSESSEE HAS TO SUFFER PENAL CONSEQUENCES IN VIEW OF THE PROVISIONS OF M/S. NIRMAN CONSTRUCTION 7 SECTION 221. MOREOVER, THE LEARNED COMMISSIONER (APPEALS) HAS SUBSTANTIALLY REDUCED THE QUANTUM OF PENALTY FROM ` 16,42,037 TO ` 3,28,407. THIS HAS BEEN DONE BY THE LEARNED COMMISSIONER (APPEALS ) AFTER EXAMINING THE ASSESSEES PLEA OF LACK OF FUNDS AND LIQUIDITY CRUNCH AS ON 31 ST OCTOBER 2007. HE, THUS, STRONGLY RELIED UPON THE FINDINGS OF THE LEARNED COMMISSIONER (APPEALS). 10 . WE HAVE HEARD THE RIVAL CONTENTION S , PERUSED THE RELEVANT FINDINGS OF T HE AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. REGARDING THE PAYMENT OF SELF ASSESSMENT TAX, THE LAW, AS ENVISAGED IN SECTION 140A IS THAT, THE ASSESSEE IS LIABLE TO PAY SELF ASSESSMENT TAX WHICH IS PA YABLE ON THE BASIS OF ANY RETURN OF INCOME REQUIRED TO BE FURNISHED UNDER THE PROVISIONS OF THE ACT. SUCH A TAX HAS TO BE PAID TOGETHER WITH THE INTEREST PAYABLE BEFORE FURNISHING OF THE RETURN OF INCOME. NOT ONLY THAT THE ASSESSEE HAS TO FURNISH THE PROOF OF PAYMENT ACCOMPANIED WITH THE RETURN OF INCOME. SECTION 221 PROVIDES FOR LEVY OF PENALTY ALONG WITH ARREARS OF TAX AND THE AMOUNT OF INTEREST PAYABLE UNDER SUB SECTION (2) OF SECTION 2 2 0 WHERE THE ASSESSEE IS IN DEFAULT IN MAKING PAYMENT OF TAX. THE SECOND PROVISO TO SECTION 221 , PROVIDES DISCRE TION TO THE ASSESSING OFFICER THAT IF THE ASSESSEE PROVES TO THE SATISFACTION OF THE ASSESSING OFFICER THAT THE DEFAULT WAS FOR GOOD AND SUFFICIENT REASONS THEN, I N THAT CASE, NO PENALTY SHALL BE LEVIED UNDER SECTION 221. IT IS UNDISPUTED FACT THAT THE ASS ESSEE HAD NOT PAID THE SELF ASSESSMENT TAX BEFORE THE FILING OF THE RETURN OF INCOME ON 29 TH OCTOBER 2007, WHEREIN THE ADMITTED TAX LIABILITY WAS RS . 15,87,211 ALONG WITH THE INTEREST UNDER SECTION 234B. THE ASSESSEES CASE HAS BEEN THAT AT THE TIME OF FILING OF RETURN OF INCOME, THE ASSESSEE DID NOT HA VE SUFFICIENT FUND FOR PAYING THE SELF ASSESSMENT TAX. THIS HAS BEEN DEMONSTRATED THROUGH VARIOUS CLOSING BALANCE S OF THE BANK ACCOUNT S AS ON 31 ST OCTOBER 2007. THE LEARNED COMMISSIONER (APPEALS) TOO HAS M/S. NIRMAN CONSTRUCTION 8 EXAMINED THE AVAILABILITY OF FUNDS AT THE TIME OF FILING OF THE RETURN OF INCOME. HOWEVER, INSTEAD OF TAKING THE AG G RE GATE POSITION AS ON 31 ST OCTOBER 2007 OF ALL THE BANK ACCOUNTS, HE HAS DRAWN ADVERSE INFERENCE ON ACCOUNT OF DEBIT BALANCE IN SOME OF THE BANK ACCO UNTS. ON THE CONTRARY, THE A G GRE GATE POSITION AS ON 31 ST OCTOBER 2007 WAS THAT THE ASSESSEE HAD OVER ALL DEBIT BALANCE OF ` 14,05,163 AND THE CREDIT BALANCE WAS ` 14,96,740. THUS, THERE WAS A NET CREDIT BALANCE OF ` 91,576 WHICH WAS PAYABLE TO THE BANK. FR OM TH ESE ACCOUNT S , IT CAN BE HELD THAT THE ASSESSEES CONTENTION WAS CO RRECT THAT IT DID NOT HAD SUFFICIENT FUNDS ON THE DATE OF RETURN OF INCOME TO PAY THE SELF ASSESSMENT TAX. BESIDES THIS AND L OOKING TO THE FACT THAT THE ASSESSEE IS NOT A HABITUAL DEFAU LTER AND THAT THE ASSESSEE HAD MADE THE PAYMENT OF TAXES DUE UNDER SECTION 140A I MMEDIATELY AFTER THREE MONTHS WITHOUT ANY NOTICE FROM THE DEPARTMENT, IT CAN BE HELD THAT THERE WAS A REASONABLE AND SUFFICIENT REASON IN VIEW OF THE SECOND PROVISO TO SECTION 221. SINCE THE LEVY OF PENALTY UNDER SECTION 221 IS DISCRETIONARY IN VIEW OF THE SECOND PROVISO TO SECTION 221 , THEREFORE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY OF ` 3,28,407 AS SUSTAINED BY THE L EARNED COMMISSIONER (APPEALS) IS LIABLE TO BE DELETED. CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND DELETE THE PENALTY. THUS, THE GROUND NO.1 RAISED BY THE ASSESSEE IS TREATED AS ALLOWED. 11 . GROUND NO.2, AS R AISED BY THE ASSESSEE, HAS BECOME ACADEMIC FOR THE REASON THAT THE PENALTY HAS BEEN DELETED AND THE INTEREST CHARGEABLE UNDER SECTION 234B AND 234C IS ALREADY PART OF SELF ASSESSMENT TAX WHICH HAS BEEN PAID AND THE ASSESSEES PLEA THAT WHILE IMPOSING THE P ENALTY, SUCH INTEREST HAS TO BE REMOVED DOES NOT M/S. NIRMAN CONSTRUCTION 9 REQUIRE ANY SEPARATE ADJUDICATION. THUS, GROUND NO.2, RAISED BY THE ASSESSEE IS TREATED AS INFRUCTUOUS. 12 . 12. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 15 TH JANUARY 2014 ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY 2014 SD / - . D. KARUNAKARA RAO ACCOUNTANT MEMBER SD / - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 15 TH JANUARY 2014 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI