DCIT-9(3)(2), MUMBAI V. GATE GOURMET INDIA P.LTD, MUMBAI

ITA 6312/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6787 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: AISAGER RAMPURAWALA
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6312/M/2017 ASSESSMENT YEAR: 2009-10 DCIT 9(3)(2), 418, 4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 VS. M/S. GATE GOURMENT INDIA PVT. LTD., C/O SKY GOURMENT INDIA PVT. LTD., OFF. INTERNATIONAL AIRPORT, APPROACH ROAD, MAROL, ANDHERI (E), MUMBAI-400 059 PAN: AADCG0763G (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AISAGER RAMPURAWALA, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, D. R. DATE OF HEARING :15.04.2019 DATE OF PRONOUNCEMENT :24.04.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 03.07.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE ONLY ISSUE RAISED BY THE REVENUE IS AGAINST THE DELETION OF PENALTY BY LD. CIT(A) AS LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE ACT. 3. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE B ROUGHT TO THE NOTICE OF THE BENCH THAT THE ISSUE RAISED BY TH E REVENUE ITA NO.6312/M/2017 M/S. GATE GOURMENT INDIA PVT. LTD. 2 AGAINST THE DELETION OF PENALTY HAS NO BASIS AFTER THE QUANTUM ADDITION HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND THE LD. CIT(A) ONLY AFTER FOLLOWING THE ORDER OF THE TRIBUN AL IN QUANTUM APPEAL IN WHICH THE FIRST QUANTUM OF ADDITION TO TH E TUNE OF RS.2,02,89,000/- ON ACCOUNT OF ONE TIME CAPITAL ASS ISTANCE RECEIVED BY THE ASSESSEE WAS DELETED AND SECOND WAS ADDITION OF RS.18,83,419/- IN RESPECT OF AMOUNT WRITTEN OFF WAS RESTORED TO THE FILE OF THE AO, DELETED THE PENALTY. THE LD AR ,THEREFORE, PRAYED THAT THE APPEAL OF THE REVENUE MAY KINDLY BE DISMISSED. 4. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE G ROUND OF APPEAL. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY ON THE GROUND THAT THE QUANTUM ORDER IN THI S CASE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. WE OBSERVE THAT THE PENALTY HAS BEEN IMPOSED ON TWO ADDITIONS MADE BY T HE AO ONE IS OF RS.2,02,89,000/- IN RESPECT OF ONETIME CAPITA L ASSISTANCE RECEIVED BY THE ASSESSEE WHICH HAS BEEN DELETED BY THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.7277/M/201 2 A.Y. 2009-10 VIDE ORDER DATED 06.04.2016 AND THE SECOND ADDITION IN RESPECT OF AMOUNT WRITTEN OFF TO THE TUNE OF RS.18, 83,419/- WHICH HAS BEEN RESTORED TO THE FILE OF THE AO FOR F RESH ADJUDICATION. IN OUR OPINION, THE PENALTY HAS RIGH TLY BEEN DELETED BY THE LD. CIT(A) WHEN THE ADDITIONS IN QUA NTUM APPEAL HAS EITHER BEEN DECIDED IN FAVOUR OF THE ASSESSEE O R RESTORED TO THE FILE OF THE AO. ACCORDINGLY, WE DISMISS THE AP PEAL OF THE REVENUE AS WITHOUT ANY MERIT. ITA NO.6312/M/2017 M/S. GATE GOURMENT INDIA PVT. LTD. 3 6. IN RESULT THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 24.04.2019. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24.04.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.