VIMAL KUMAR RATHI, MUMBAI V. ITO 21(2)(4), MUMBAI

ITA 6308/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9729 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2002-2003
• Appeal Filed On: 26-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Assessee Lawyers: G P MEHTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 6308/MUM/2016 ( / ASSESSMENT YEAR: 2002 - 03 ) SHRI VIMAL KUMA R RATHI C/O. G. P. MEHTA & CO., CAS, 807, TULSIANI CHAMBERS, 212, NARIMAN POINT, MUMBAI - 400 021 / VS. ITO - WARD 25(3)(5), C - 10, BKC, BANDRA (E), MUMBAI ./ ./ PAN/GIR NO. AABPR 3676 A ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI G. P. MEHTA / RESPONDENT BY : MS. POOJA SWAROOP / DATE OF HEARING : 21.03.2018 / DATE OF PRONOUNCEMENT : 22.03 .2018 / O R D E R PER S H AMIM YAHYA, A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 17.4.2014 AND PERTAINS TO THE A SSESSMENT YEAR 2002 - 03. 2. THE GROUNDS OF APPEAL READ AS UNDER: 01. THE ORDERS PASSED BY TH E LEARNED LOWER AUTHORITIES ARE BAD IN LAW AND BAD IN FACTS. 02. THE LEARNED CIT (A) HAS GROSSLY ERRED IN HOLDING THAT APPEAL FILED BY THE APPELLANT AGAINST THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER U/S 271 (1) (C ) 2 I TA NO. 6308/MUM/2016 SHRI VIMAL KUMAR RATHI OF THE I. T. ACT, 1961, WAS RENDERED INFRUCTUOUS IN VIEW OF THE APPEAL FILED BY THE APPELLANT AGAINST THE ASSESSMENT ORDER PASSED HAVING BEEN ALLOWED BY THE HON'BLE INCOEM TAX APPELLATE TRIBUNAL, INASMUCH AS, THERE IS NO PROVISION IN THE I. T. ACT, 1961 IN OPERATION, BY VIRTUE OF WH ICH PENALTY ORDER U/S. 271 (1) {C ) OF THE ACT AUTOMATICALLY BECOMES IN OPERATIVE OR REDUNDANT ON DELETION OF ADDITIONS MADE TO THE RETURNED INCOME. 03. THE LEARNED CIT (A) HAS GROSSLY ERRED IN MAKING A CONCLUDING REMARK IN THE IMPUGNED APPELLATE ORDE R, 'IN THE RESULT THE APPEAL IS DISMISSED' EVEN THOUGH IN SUBSTANCE AND EFFECT, THE LEARNED CIT (A) INTENDED TO ALLOW THE APPEAL. 04. HAVING REGARD TO THE FACTS OF THE CASE, PROVISIONS OF LAW AND JUDICIAL PROPOSITIONS, THE CONCLUDING REMARK IN IMPUGNE D ORDER MAY PLEASE BE DIRECTED TO BE MODIFIED / CORRECTED SO AS TO BRING IT IN CONFORMITY WITH THE REASONING AND SUBSTANCE OF THE DECISION. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT ACTUALLY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DELETED THE PENALTY UPON FINDING THAT THE ADDITION HAS BEEN ALREADY DELETED BY THE ITAT IN THE QUANTUM APPEAL. HOWEVER, THE ASSESSEE IS ONLY AGGRIEVED BY THE LAST LINE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) S ORDER WHEREIN IT HAS BE EN MENTIONED THAT THE APPEAL IS DISMISSED. WE MAY GAINFULLY REFER TO THE OPERATIVE PART OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ORDER AS UNDER: 4. IT IS EVIDENT FROM THE ORDER OF ITAT THAT THE HONOURABLE ITAT HAS DECIDED THE APPEAL IN FAVOUR OF TH E ASSESSEE AND DELETED THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER. IN THE CASE OF K.C.BUILDERS VS. ACIT REPORTED AT 255 ITR 56 2/135 TAXMAN 461 (SC), THE HON'B BLE SUPREME COURT HAS HELD THAT IF THE QUANTUM ADDITION BASED ON WHICH THE PENALTY IS LEVIE D, IS DELETED, PENALTY U/S 271(1)(C) ON THE ADDITIONS/DISALLOWANCES MADE DOES NOT SUSTAIN. IN VIEW OF THE SAME, SINCE THE QUANTUM ADDITION MADE IN THE ASSESSME NT ORDER IS DELETED BY THE HON' BLE ITAT VIDE ORDER NO. ITA NO.3094/MUM/2013 DATED 16/10/2015, THE PENALTY LEV IED THEREON DO ES NOT SURVIVE. ON ACCOUNT OF THESE FACTS, THE PENALTY LEVIED IS CANCELLED. THE GRO UND RAISED BECOME INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL IS DISMISSED. 3 I TA NO. 6308/MUM/2016 SHRI VIMAL KUMAR RATHI 4. FROM THE ABOVE, IT IS EVIDENT THAT THE LD. COMMISSIONER OF INCOME TA X (APPEALS) HAS ACTUALLY DELETED THE PENALTY AND THE REVENUE IS NOT IN APPEAL BEFORE US. HENCE, SINCE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS IN EFFECT DELETED THE PENALTY, THIS APPEAL FILED BY THE ASSESSEE IS INFRUCTUOUS AND HENCE THE SAME IS DISMISSED AS SUCH. 5. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.03.2018 SD/ - SD/ - ( PAWAN SINGH ) (S HAMIM YAHYA) / J UDI CIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 22.03.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI