ITO 8(3)2, MUMBAI V. STERLITE OPPPRTIMOTOES & VENTURES LTD, MUMBAI

ITA 6810/MUM/2011

• Counselvise Citation: 681019914 RSA 2011
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 07-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Assessee Lawyers: RAMESH PATODIA
• Keywords: Revised return
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 6810/MUM/2011 ASSESSMENT YEAR: 2005-06 ITO, 8(3)2, ROOM NO. 202, AAYAKAR BHAWAN, M.K.MARG, MUMBAI-400 020. VS. M/S STERLITE OPPORTUNITIES & VENTURES LTD, VEDANTA, 75, NEHRU ROAD, VILE PARLE(E), MUMBAI-400 099 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAGCS 9427 A APPELLANT BY : SHRI GIRIJA DAYAL RESPONDENT BY : SHRI RAMESH PATODIA DATE OF HEARING : 15.01.2014 DATE OF PRONOUNCEMENT : 22.01.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-18, MUMBAI DATED 21.07.2011 DELETING THE PENALTY OF RS. 7,40,52,570/- LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED, THE ASSESSEE, A COMPANY, FILED I TS RETURN OF INCOME ORIGINALLY ON 29.10.2005 DECLARING LOSS AT RS.20,64,18,320/-. SUB SEQUENTLY, AFTER THE ASSESSEE RECEIVED THE NOTICE U/S 143(2) OF THE ACT, THE ASSESSEE COMP ANY FILED ITS REVISED RETURN OF INCOME ON 13.02.2007 REDUCING THE RETURNED INCOME TO NIL, WHE REIN THE ASSESSEE HAD DISALLOWED AND ADDED BACK A SUM OF RS.20,64,11,571/- U/S 14 A OF T HE ACT. THEREAFTER, THE ASSESSMENT WAS COMPLETED AT RS.NIL. AS THE ASSESSEE HAD FILED THE REVISED RETURN OF INCOME ONLY AFTER RECEIPT OF THE NOTICE FROM THE DEPARTMENT, THE AO H ELD THAT THE DISCLOSURE WAS NOT VOLUNTARY AND THEREBY LEVIED A PENALTY OF RS.7,40,52,570/- BE ING 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. ON APPEAL, THE LD.CIT(A) DELETED T HE PENALTY LEVIED BY THE AO ON THE GROUND THAT THE TRIBUNAL IN THE QUANTUM PROCEEDINGS , VIDE ORDER DATED 27.05.2011 IN ITA NO.656/MUM/2009 HAD HELD THAT THE REVISED RETURN FI LED BY THE ASSESSEE U/S 139(5) OF THE ITA NO. 6810/MUM/2011 M/S. STERLITE OPPORTUNITIES & VENTURES LTD. ASSESSMENT YEAR: 2005-06 2 ACT WAS A VALID ONE. AGGRIEVED BY THE IMPUGNED DECI SION, THE REVENUE HAS PREFERRED THIS APPEAL BEFORE US. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS NOT DISPUTED THAT AFTER THE ASSESSEE HAS RECEIVED THE NOTICE U/S 143(2) OF THE ACT, THE ASSESSEE COMPANY FILED ITS REVISED RETURN OF INCOME ON 13.02.2007 RE DUCING THE RETURNED INCOME TO NIL, WHEREIN THE ASSESSEE HAS DISALLOWED AND ADDED BACK A SUM OF RS.20,64,11,571/- U/S 14 A OF THE ACT. THEREAFTER, AN ASSESSMENT HAS BEEN MADE U/ S 143(3) OF THE ACT. IT IS PERTINENT TO MENTION THAT ON THE ISSUE OF VALIDITY OF THE REVISE D RETURN FILED BY THE ASSESSEE, THE TRIBUNAL, VIDE ORDER DATED 27.05.2011 IN ITA NO.656/MUM/2009 HAS HELD THAT THE REVISED RETURN FILED BY THE ASSESSEE U/S 139(5) OF THE ACT IS A VALID RE TURN AS THE CONDITIONS STIPULATED IN THE SAID PROVISION ARE FULFILLED BY THE ASSESSEE. ONCE THE T RIBUNAL FINDS THAT THE REVISED RETURN FILED BY THE ASSESSEE IS A VALID RETURN AND IN THE ABSENCE O F ANY CONTRARY ORDER FROM HIGHER FORUM AGAINST THE FINDINGS OF THE TRIBUNAL, WE ARE OF THE CONSIDERED OPINION THAT THE LEVY OF PENALTY ON THE BASIS OF THE EARLIER ORIGINAL RETURN FILED B Y THE ASSESSEE IGNORING THE REVISED RETURN IS NOT LEGALLY TENABLE. THE FACT THAT THE ASSESSEE REC EIVED THE NOTICE U/S 143(2) OF THE ACT AND ONLY THEREAFTER THE REVISED RETURN OF INCOME HAS BE EN FILED BY THE ASSESSEE CANNOT BE THE BASIS FOR INVOKING THE PROVISIONS OF SECTION 271(1) (C) OF THE ACT. IN VIEW OF THAT MATTER, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WIT H THE ORDER OF THE LD.CIT(A) DELETING THE IMPUGNED PENALTY AND THE SAME IS UPHELD. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY, 2014. SD/- SD/- (R.C.SHARMA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.01.2014. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.