ITO 21(2)(4), MUMBAI V. THE SWASTIK CO OPERATIVE HOUSING SOCIETY LTD, MUMBAI

ITA 6924/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4268 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S N RAJUDR

Judgement Text

1 , INCOME TAX APPELLATE TRIBUNAL,MUMBAI E BENCH BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SANJAY GARG,JUDICIAL MEMBER /.ITA NO.6924/M/2013, /ASSESSMENT YEAR-2009-10 ITO- 21(2)(4) C-10, ROOM NO.503, 5 TH FLOOR BANDRA KURLA COMPLEX, BANDRA MUMBAI-400 051. VS M/S. SWASTIK CO-OPERATIVE HOUSING SOCIETY LTD. VISHNU PRASAD DESAI BHUVAN, V.L. MEHTA ROAD, JVPD SCHEME, VILE PARLE (W),MUMBAI-400 056. PAN:AAAJT 0083 E ( / APPELLANT) ( / RESPONDENT) /ASSESSEE BY : NONE / REVENUE BY : SH. B.S.N. RAJU-DR / DATE OF HEARING : 10-11 -2015 / DATE OF PRONOUNCEMENT : 01.01.2016 , 1961 1961 1961 1961 254 254 254 254( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) !# $% PER RAJENDRA, AM - CHALLENGING THE ORDER DT.17.09.2013 OF THE CIT(A)-3 2,MUMBAI THE ASSESSING OFFICER(AO)HAS FILED THE PRESENT APPEAL. 2. ASSESSEE-CO-OPERATIVE-HOUSING-SOCIETY,FILED ITS RET URN OF INCOME ON 24.09.2009,DECLARING TOTAL INCOME AT RS.NIL.THE AO COMPLETED THE ASSESSM ENT ON 28.12.2011,U/S.143(3) OF THE ACT, ASSESSING ITS INCOME AT RS.24.15 LAKHS.WHILE COMPLE TING THE ASSESSMENT,THE AO MADE ADDITIONS TO THE INCOME OF THE ASSESSEE UNDER THE HEADS TRANS FER FEES RECEIVED(RS.13.59 LAKHS)AND TDR PREMIUM RECEIVED(RS.10.55LAKHS).PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE INITIATED ON THE GROUND THAT ASSESSEE HAD FURNISHED INACCURATE P ARTICULARS OF INCOME AND HAD CONCEALED ITS INCOME.AS PER THE AO,IN RESPONSE TO THE SHOW CAUSE NOTICE FOR LEVYING CONCEALMENT PENALTY THE ASSESSEE DID NOT FILE ANY REPLY.VIDE HIS ORDER DATE D 26.12.2012,THE AO LEVIED PENALTY OF RS.8.22 LAKHS U/S. 271 (1) (C)OF THE ACT. 3. AGGRIEVED BY THE PENALTY ORDER OF THE AO, THE ASSES SEE PREFERRED AN APPEAL BEFORE THE FAA.AFTER CONSIDERING THE SUBMISSION OF THE ASSESSE E,THE ASSESSMENT ORDER AND THE PENALTY ORDER THE FAA HELD THAT BOTH THE ISSUES WERE COVERE D IN FAVOUR OF THE ASSESSEE BY THE JUDGMENTS OF THE HONBLE JURISDICTIONAL HIGH COURT,THAT THE A SSESSEE HAD NOT FURNISHED INACCURATE PARTICULARS OF INCOME. 4. BEFORE US,THE DEPARTMENTAL REPRESENTATIVE(DR)STATED THAT MATTER COULD BE DECIDED ON MERITS. WE FIND THAT THE AO HAD MADE THE ADDITIONS ON TWO C OUNTS NAMELY AO TRANSFER FEES RECEIVED AND TDR PREMIUM RECEIVED,THAT THE FAA HAD DELETED THE P ENALTY RELYING UPON THE JUDGMENTS OF BOMBAY HIGH COURT DELIVERED IN THE CASES OF SIND CO OPERATIVE HOUSING SOCIETY(182TAXMAN 346)AND JAI HIND CHS LTD.(I T APPEAL NO.6057 OF 201 0),THAT ADDITIONS MADE BY THE AO ARE NOT SUSTAINABLE IN LIGHT OF THE JUDGMENTS OF THE HONBL E COURT,THAT MERE ADDITION IN QUANTUM ITA 6924/M/13(09-10) 2 PROCEEDING DO NOT LEAD TO THE CONCLUSION THAT THE A SSESSEE HAD FILED INACCURATE PARTICULARS. THEREFORE,WE ARE OF THE OPINION THAT THE ORDER OF T HE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY.CONFIRMING HIS ORDER WE DECIDE THE EFFECT IVE GROUND OF APPEAL AGAINST THE AO. AS A RESULT, APPEAL FILED BY THE AO STANDS DISM ISSED. . ORDER PRONOUNCE D IN THE OPEN COURT ON 1 ST JANUARY, 2016. 1 2016 SD/- SD/- ( /SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER !# / ACCOUNTANT MEMBER /MUMBAI, /DATE: 01.01.2016. . . . .. . JV.SR.PS. & ' / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ $ & , 4. THE CONCERNED CIT / $ & 5. DR E- BENCH, ITAT, MUMBAI / ') , E , . . . 6. GUARD FILE/ (, //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.