M/s. BOMBAY OKARA CARGO CARRIERS, MUMBAI V. CIT(A)-XIII, MUMBAI

ITA 6310/MUM/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7928 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-02-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 27-11-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI. PRAMOD KUMAR (A.M.) AND SHRI. R.S. PAD VEKAR (J.M.) ITA NO.6310/MUM/2006 ASSESSMENT YEAR : 2001-2002 BOMBAY OKARA CARGO CARRIERS 101, DHEERAJ VIHAR, SERVICE RD., EASTERN EXPRESS HIGHWAY, JOGESHWARI (E), MUMBAI 400 060. PAN : AAAFB4078R VS. CIT (A) XIII ROOM NO.362, AAYAKAR BHAVAN, M.K. RD., MUMBAI -400 020. (APPLICANT) (RESPONDENT) APPLICANT BY : NONE. RESPONDENT BY : SHRI. S.S. RANA. (D.R.) O R D E R PER R.S. PADVEKAR, J.M. THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING T HE IMPUGNED ORDER OF THE LEARNED CIT (A) XIII, MUMBAI DATED 03.08.2006 IN WHICH THE ORDER PASSED U/S.271(1)(C) OF THE I.T. ACT HAS BEEN CONFI RMED THE ISSUE WHICH ARISES FOR OUR CONSIDERATION IS WHETHER THE LEARNED CIT (A) JUSTIFIED IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S.271(1)(C) LEVYING PENALTY OF RS.1,58,806/-. 2. THE FACTS WHICH REVEAL FROM THE RECORD ARE AS UN DER. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING THE TOTAL INCO ME OF RS.26,740/-. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSES SMENT WAS COMPLETED U/S.143(3) OF THE ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.4,31,850/-. THE FOLLOWING ADDITIONS WERE MADE 1. ON ACCOUNT OF DEPRECIATION RS.1,10,112/- 2. ON ACCOUNT OF LOANS RS.2,44,590/- 3. ON ACCOUNT OF INTEREST ON LOAN RS. 50,415/- TOTAL RS.4,05,117/- ITA NO.6310/MUM/2006 A.Y.: 2001-2002 2 THE ASSESSING OFFICER INITIATED THE PENALTY PROCEE DINGS FOR FURNISHING INACCURATE PART OF THE INCOME AND LEVIED THE PENALT Y OF RS.1,58,806/-. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LE ARNED CIT (A) AND PARTLY SUCCEEDED. THE LEARNED CIT (A) DELETED THE PENA LTY TO THE EXTENT OF THE ADDITION ON ACCOUNT OF DEPRECIATION BUT CONFIRMED T HE PENALTY TO THE EXTENT OF ADDITIONS MADE U/S.68 OF THE I.T. ACT AND CORRES PONDING INTEREST THERE ON I.E. RS.2,44,590/- AND RS.50,415/- RESPECTIVELY. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ADDITION MADE BY THE ASSESSING OFFICER U/S.68 OF THE ACT AS WELL AS CORRESPONDING INTEREST WERE SUBJECT MATTER THE APPEAL BEFORE THE TRIBUNAL BEING ITA NO.6834/MUM/08 AND THE TRIBUNAL HAS RESTORED ENTIRE MATTER BACK TO THE FILE OF THE LEARNED CIT (A) FOR RE-ADJUDICATION. HE FURTHER SUBMITTED THAT THE DECISION OF THE LEARNED CIT (A) ON THE ISSUE OF ADDITIONS WILL HAVE BEARING ON PENALTY. HE THEREFORE, PLEADED THAT THE MATTER OF PENALTY ALSO MAY BE RESTORED. 4. WE HAVE ALSO HEARD THE LEARNED D.R. THE LEARN ED COUNSEL HAS FILED THE COPY OF THE TRIBUNAL ORDER BEING ITA NO.6834/MU M/08 DATED 16.09.2009 WHICH IS PLACED ON RECORD. ON PERUSAL OF THE ORDER OF THE TRIBUNAL IT IS SEEN THAT THE TRIBUNAL HAS SET ASIDE THE ENTIRE MATTER TO THE FILE OF THE LEARNED CIT (A) FOR RE-ADJUDICATION. WE, THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES SET ASIDE THIS MATTER T O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFIC ER SHOULD RE-DECIDE THIS MATTER AFTER THE FATE OF THE ADDITIONS IS DECIDED B Y THE LEARNED CIT (A). THE ASSESSING OFFICER IS DIRECTED TO GIVE RESPONSIBLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ARE NOT EXPRESSING ANYTHING O N THE MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.6310/MUM/2006 A.Y.: 2001-2002 3 ORDER PRONOUNCED ON THIS DAY OF 4 TH FEBRUARY, 2010. SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) SD/- (R.S. PADVEKAR) (JUDICIAL MEMBER) MUMBAI, DATED 4 TH FEBRUARY, 2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-XIII, MUMB AI 4. COMMISSIONER OF INCOME TAX, CITY-XIII, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.6310/MUM/2006 A.Y.: 2001-2002 4 DATE INITIALS 1. DRAFT DICTATED ON 02-02-10 PS 2. DRAFT PLACED BEFORE AUTHOR 03-02-10 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER