GARDEN VIEW REALTOR P.LTD, MUMBAI V. ITO 3(1)(4), MUMBAI

ITA 7059/MUM/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3624 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 05-01-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2013
• Court: TRIBUNAL
• Department Lawyers: NARAYAN ATAL
• Assessee Lawyers: SHRIKANT NAMDEO
• Keywords: Reasonable cause; Condonation of delay
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 7059/MUM./2013 ( ASSESSMENT YEAR : 20 0 4 05 ) M/S. GARDEN VIEW REALTOR PVT. LTD. 161 C, MITTAL TOWER NARIMAN PO INT, MUMBAI 400 021 PAN AAACG1917F . APPELLANT V/S INCOME TAX OFFICER WARD 3(1)(4), AAYAKAR BHAWAN 101, M.K. ROAD, MUMBAI 400 020 . RESPONDENT REV ENUE BY : SHRI NARAYAN ATAL ASSESSEE BY : SHRI SHRIKANT NAMDEO DATE OF HEARING 05 . 0 1 .201 6 DATE OF ORDER 05.01.2016 O R D E R PER SAKTIJIT DEY , J.M. INSTANT APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 29 TH AUGUST 2013, OF LEARNED COMMISSIONER (APPEALS) 7, MUMBAI, CONFIRMING PENALTY IMP OSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2004 05. 2. THERE IS A DELAY OF EIGHT DAYS IN FILING THE APPEAL. AFTER PERUSING THE PETITION FILED BY THE ASSESSEE SEEKING CONDONATION OF DELAY ALONG M/S. GARDEN VIEW REALTOR PVT. LTD. 2 WITH AFFIDAVIT , WE ARE SATISFIED THAT APPEAL WAS FILED BELATEDLY DUE TO REASONABLE CAUSE. WE THEREFORE, CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING ON MERIT. 3. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE ISSUE ON THE BASIS OF WHICH PENA LTY UNDER SECTION 271(1)(C) WAS IMPOSED, IN THE MEANWHILE, HAS BEEN RESTORED BACK BY THE TRIBUNAL TO ASSESSING OFFICER FOR DECIDING AFRESH , WHILE DECIDING ASSESSEES QUANTUM APPEAL. HE, THEREFORE, SUBMITTED, THE PENALTY IMPOSED UNDER SECTION 271(1)(C) CANN OT SURVIVE. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT CONTROVERTED AFORESAID FACTUAL POSITION. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ASSESSMENT IN CASE OF THE ASSESSEE FOR THE IMPUGNED ASSES SMENT YEAR WAS COMPLETED UNDER SECTION 143(3) R/W SECTION 147 OF THE ACT ON 17 TH NOVEMBER 2008, MAKING CERTAIN ADDITIONS / DISALLOWANCES, ONE AMONGST THEM BEING DEDUCTION CLAIMED OF ` 8,82,000, ON ACCOUNT OF LOSS ON SALE OF SHARES. THE SAID DISALLOWANCE WA S ALSO CONFIRMED BY THE FIRST APPELLATE AUTHORITY AGAINST WHICH ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. DURING THE PENDENCY OF ASSESSEES APPEAL BEFORE THE TRIBUNAL, THE ASSESSING OFFICER IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT M/S. GARDEN VIEW REALTOR PVT. LTD. 3 ON DISA LLOWANCE OF ` 8,82,000, CLAIMED AS LOSS ON SALE OF SHARES. THE FIRST APPELLATE AUTHORITY ALSO UPHELD IMPOSITION OF PENALTY. HOWEVER, IN THE MEANWHILE, ASSESSEES APPEAL ON QUANTUM HAS BEEN DISPOSED OFF BY THE TRIBUNAL VIDE ORDER DATED 3 RD DECEMBER 2015, IN ITA NO .2544/ MUM./2012. P ERUSAL OF THE ORDER PASSED BY THE TRIBUNAL REVEALS THAT ISSUE RELATING TO DISALLOWANCE OF LOSS ON SALE OF SHARES SPECIFICALLY RAISED BY THE ASSESSEE IN GROUND NO.4, HAS BEEN REMITTED BACK TO THE ASSESSING OFFICER FOR DECIDING AFRE SH WITH OTHER ISSUES. THAT BEING THE CASE, PENALTY IMPOSED UNDER SECTION 271(1)(C) ON ACCOUNT OF DISALLOWANCE OF CLAIM OF LOSS ON SHARES CANNOT SURVIVE. IN THE AFORESAID VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEA LS) CONFIRMING IMPOSITION OF PENALTY. HOWEVER, WE MAKE IT CLEAR, IT WILL BE OPEN FOR THE ASSESSING OFFICER TO INITIATE PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, IF WARRANTED, AFTER COMPLETION OF ASSESSMENT IN ACCORDANCE WITH DIRECTIONS OF THE TRIBUNAL. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.01.2016 SD/ - N.K. BILLAIYA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 05.01.2016 M/S. GARDEN VIEW REALTOR PVT. LTD. 4 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI