Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 5621 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
03-06-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
H
Assessment Year
2006-2007
Appeal Filed On
14-11-2017
Judgement Text
H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ./ I.T.A. NO. 6589 / MUM/2017 ( / ASSESSMENT YEAR : 2006 - 07 ) M/S. KAMDAR PRIVATE LTD., GROUND FLOOR, INDUSTRIAL ASSURANCE BUILDING, J TATA ROAD, CHURCHGATE, MUMBAI 400020 / V. DCIT 1(2), 5 TH FLOOR, AYAKAR BHAVAN, MUMBAI 400020 ./ PAN : AAACK3308G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI. J.P VAIRAGI REVENUE BY: SHRI. MANOJ KUMAR SINGH (DR) / DATE OF HEARING : 27 .03.2019 / DATE OF PRONOUNCEMENT : 03.06 .2019 / O R D E R PER SHAMIM YAHYA , ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSE SSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT - A DATED 21.09.2017 AND PERTAIN S TO ASSESSMENT YEAR 2006 - 07. 2. T HE GROUNDS FOR APPEAL IS THAT THE LEARNED CIT - A ERRED IN SUSTAINING THE PENALTY OF RS. 7,83,991/ - UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT . 3. BRIEF FACTS OF THE CASE LEADING TO THE LEVY OF PENALTY ARE THAT PENALTY WAS LEVIED ON TWO COUNTS. ONE ISSUE WAS THE CLAIM OF DEPRECATION ON THE PREMISES WHICH WAS LET OUT. ASSESSEES SUBMISSION I.T.A. NO.6589/MUM/2017 PAGE | 2 IN THIS REGARD WAS THAT THE SAID PREMISES WAS ALSO PARTLY USED BY THE ASSESSEE FOR GODOWN . THIS WAS REJECTED BY THE ASSESSING OFFICER, AND ASSESSEES APPEAL AGAINST THE ABOVE WAS SUSTAINED BY THE LEARNED CIT - A . A NOTHER ISSUE WAS CLAIM OF THE ASSESSEE THAT IT WAS NOT LIABLE TO TAXATION UNDER MAT PROVISIONS UNDER SECTION 115JA WAS REJECTED ON THE GROUND THAT ASSESSEES CASE WAS F ALLING UNDER SECTION 115 JB. INASMUCH AS ASSESSEE WAS NOT SITUATED IN A NOTIFIED SPECIAL ECONOMIC ZONE. 4. PENALTY U/S 271(1) ( C ) WAS ALSO LEVIED ON THE ABOVE ISSUES. THE LEARNED CIT - A ALSO SUSTAINED THE PENALTY ON THE GROUND THAT THE CLAIM OF THE ASSESSEE WAS PATENTLY DUBIOUS. 5. AGAINST ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. AS REGARDS THE CLAIM OF DEPRECATION ON WHICH PENALTY HAS BEEN LEVIED, WE FIND THAT ASSESSEES CLAIM , THAT ASSESSEE WAS AL SO USING THE SAID LET OUT PREMISES AS GODOWN HAS BEEN REJECTED. THIS ASPECT HAS TO BE LOOKED FROM THE POINT OF VIEW THAT THE SAID PRICES WAS LET OUT TO THE ASSESSEES WIFE ITSELF. HENCE THE ASSESSEE CLAIM THAT THE SAID PRIC ES WAS ALSO BE ING PARTLY USED FOR GODOWN PURPOSES CANNOT BE SAID TO BE EX F ACIE BOGUS. IN OUR CONSIDERED OPINION ASSESSEES CONDUCT IN THIS REGARD CANNOT BE SAID TO BE CONTUMACIOUS WARRANTING LEVY OF PENALTY. 6. AS REGARDS THE LEVY OF PENALTY ON ACCOUNT OF TAX UNDER SECTION 115 JB UNDER M AT IS CONCERNED, WE FIND THAT ASSESSEES CLAIM WAS THAT IT WAS FALLING UNDER 115 JA. THIS CLAIM WAS ALSO SUPPORTED BY THE CERTIFICATE OF THE AUDITORS. IN THIS VIEW OF THE MATTER ASSESSEES CONDUCT CANNOT BE SAID TO BE CONTUMACIOUS WARRANTING LEVY OF PENALT Y. IF THE CLAIM WAS WRONG THE RESPONSIBI LITY WAS THAT OF THE AUDITOR WHO DULY CERTIFIED THE SAME. HENCE IT WAS A MISTAKE ON THE PART OF THE AUDITOR AND THE ASSESSEE CANNOT BE VISITED WITH PENALTY FOR THE MISTAKE OF ITS CONSULTANT. I.T.A. NO.6589/MUM/2017 PAGE | 3 7. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT IN OUR CONSIDERED OPINION THE ASSESSEE NEED NOT BE VISITED WITH THE RIGOURS OF PEN AL PROVISIONS UNDER SECTION 271( 1 )( C ). 8. IN THIS REGARD WE DRAW SUPPORT FROM THE LARGER BENCH OF HONOURABLE APEX COURT IN THE CASE OF HIND USTAN STEEL VS. STATE OF ORISSA 83 ITR 26, WHEREIN IT WAS HELD THA T THE AUTHORITIES MAY NOT LEVY THE PENALTY IF THE CONDUCT OF THE ASSESSEE WAS NOT CONTUMACIOUS . 9. IN THE BACKGROUND OF AFORESAID D ISCUSSION AND PRECEDENT WE SET ASIDE THE ORDERS OF AUTHORI TIES BELOW AND DELETE THE LEVY OF PENALTY. 10 . IN THE RESULT APPEAL FILED BY THE ASSESSEE STANDS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 0 3 .0 6 .2019. 0 3 .0 6 .2019 S D / - S D / - ( AMARJIT SINGH ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 3 .0 6 .2019 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI
