TALENT INFOWAY LTD, MUMBAI V. DCIT CC 46, MUMBAI

ITA 697/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7768 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I.T.A. NO 697 / MUM/ 201 5 ( / ASSESSMENT YEAR : 20 09 - 10 ) M/S TALENT INFOWAY LIMITED, BLOCK H SHRI SADASHIV CHS LTD, 6 TH ROAD, SANTACRUZ (E), MUMBAI - 400055 / VS. DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 46, ROOM NO.659, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / APPLICANT BY : SHRI MUKESH CHOKSI /RESPONDENT BY : MS.BEENA SANTOSH / DATE OF HEARING : 14.12 .2016 / DATE OF PRONOUNCEMENT : 20. 3 .2017 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE A SSESSEE AND IT IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A), MUMBAI, DATED 14.11.2014 FOR THE ASSESSMENT YEAR 20 09 - 10. 2. ONLY GROUND RAISED BY THE ASSESSEE IN THIS APPEAL PERTAINS TO CONFIRMATION OF PENALTY OF RS.7,07,000/ - BY THE LD.CIT(A) AS IMPOSED B Y THE AO UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961. 3. THE LD. AR , AT THE OUTSET , SUBMITTED BEFORE US THAT THE QUANTUM APPEAL FOR THE INSTANT YEAR ON THE BASIS OF WHICH THE PENALTY HAS BEEN 2 ITA NO. 697 / MUM/ 201 5 IMPOSED WHICH IS A SUBJECT MATTER OF THE PRESE NT APPEAL HAS BEEN DELETED BY THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S PRABHA MULTITRADE AGENCIES P LTD V/S DCIT IN ITA NO.688/MUM/2015(AY - 2009 - 10) DATED 31.10.2016 (IN ONE OF THE LITIGANT IN THE PRESENT APPEAL) , THEREFO RE, THE LD.AR SUBMITTED THAT THE PENALTY AS IMPOSED BY THE AO AND CONFIRMED BY THE FAA DESERVED TO BE DELETED. ON THE OTHER HAND, T HE LD.DR VERY FAIRLY AGREED TO THE CONTENTIONS OF THE LD.AR. 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE RECORD INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAW RELIED UPON BY THE LD.AR, WE FIND THAT THE QUANTUM IN THE PRESENT CASE HAS BEEN DIRECTED TO BE DELETED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN APPEAL NO.6384/MUM/2012 (AY - 2005 - 06) DATED 24.1.201 7 AND OTHER GROUP CASES BY TAKING A VIEW WITH A DIRECTION TO THE AO TO APPLY 0.15% TO ARRIVE NET INCOME OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, WE REPRODUCE RELEVANT PARAS : 10. RESPECTFULLY FOLLOWING THE CONSISTENT VIEW TAKEN BY THE TRIBUNAL, WE DIRECT THE AO TO APPLY 0.15% NET PROFIT RATE ON THE BANK DEPOSITS TO ARRIVE AT THE NET PROFIT OF THE ASSESSEE. IN THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) U/S.271(1)(C), THE LEARNED AR PLACED ON RECORD NUMBER OF ORDER OF TRIBUNAL IN GR OUP CONCERNS, WHEREIN SIMILAR PENALTY WAS DELETED BY THE TRIBUNAL. 11. MIHIR AGENCIES PVT LTD (APPEAL NO. 695/MUM/2015, A.Y. 2004 - 05) MUKESH M CHOKSI (APPEAL NO. 996/MUM/2015; A.Y. 2005 - 06, WHEREIN THE HONOURABLE TRIBUNAL HAS DECIDED WHEN THERE ARE TWO V IEWS POSSIBLE THE PROVISION OF PENALTY U/S. 271(1) (C) ARE NOT 3 ITA NO. 697 / MUM/ 201 5 ATTRACTED AND ASSESSEE'S APPEAL ARE DECIDED IN FAVOUR OF THE ASSESSEE AND PENALTY HAS BEEN DROPPED. 12. IN THE CASE OF ALPHA CHEMIE TRADE AGENCIES PVT LTD APPEAL NO. 698/M/15 FOR A.Y. 2004 - 05 & 709/M/15 FOR A.Y. 2008 - 09, THE HONOURABLE ITAT, 'J' BENCH DECIDED AS UNDER 'WE DELETE THE PENALTY LEVIED UNDER SECTION 271(L)(C) IN THE THESE CASES AS THE COMMISSION INCOME ASSESSABLE IN THE HANDS OF THE ASSESSEE HAS BEEN ON ESTIMATE BASIS, NO PENALT Y IS ATTRACTED ON THE ADDITIONS/DISALLOWANCE MADE ON ESTIMATE BASIS. 13. SAME FACTS AND CIRCUMSTANCES HAS BEEN HEARD AND DECIDED BY ITAT 'SMC' BENCH IN THE CASE OF M/S. MIHIR AGENCIES PVT LTD VIDE APPEAL NO. 7533/MUM/2015 FOR ASSESSMENT YEAR 2005 - 06 AND APPEAL NO. 7535/M/2015 FOR ASSESSMENT YEAR 2007 - 08. THE APPEAL DECIDED IN FAVOUR OF THE ASSESSEE AND PENALTY HAS BEEN DROPPED. 14. THERE ARE SIX APPEALS HEARD AND DECIDED IN THE FAVOUR IN ASSESSEE IN THE CASE OF GOLDSTAR FINVEST PVT LTD. THE FACTS AND CI RCUMSTANCES ARE SAME AND HEARD ON 24/08/2016 VIDE APPEAL NO. 7564 - 7570/MUM/2014 FOR A.Y. 2004 - 05 TO 2009 - 10, ALL SIX APPEALS ARE DECIDED IN THE FAVOUR OF ASSESSEE AND PENALTY HAS BEEN DROPPED. 15. IN THE INSTANT CASE ALSO INCOME HAS BEEN ASSESSED ON EST IMATED BASIS MERELY BECAUSE A HIGH PERCENTAGE OF INCOME WAS ASSESSED, THE LEVY OF PENALTY IS NOT AUTOMATIC AS HELD IN THE CASE OF AERO TRADERS PVT. LTD., 322 ITR 316. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL IN THE GROUP CONCERNS, WE DELE TE THE PENALTY SO IMPOSED. 5 . WE, THEREFORE, RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN NO.6384/MUM/2012 (AY - 2005 - 06) DATED 24.1.2017 ARE OF THE VIEW THAT THE INCOME OF THE ASSESSEE HAS BE EN ASSE SSED PURELY ON ESTIMATION BASIS AND ALSO THAT THE PENALTY HAS BEEN DELETED UNDER THE SIMILAR CIRCUMSTANCES AND 4 ITA NO. 697 / MUM/ 201 5 FACTS OF THE CASE AS STATED HEREINABOVE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY. 6 . IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH MARCH , 2017 S D SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 20. 3 .2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE A PPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI