ACIT 15(3), MUMBAI V. D.J. BUILDERS & DEVELOPERS, MUMBAI

ITA 7143/MUM/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9314 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 01-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 30-11-2012
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D , MUMBAI . , , . , BEFORE SHRI D.MANMOHAN , VICE PRESIDENT AND SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER ./ ITA NO. 7143 /M/201 2 ( / ASSESSMENT YEAR ; 200 5 - 0 6 ) ACIT 15(3 ) R.NO.1 0 9 , MATRU MANDIR, 1 ST FLOOR, TARDEO RD, MUMBAI - 400007 / VS. D.J. BUILDERS & DEVELOPERS , A/ 10 3 , MRUDOKISHORE CHS LTD. SVP RD. DATTAPOADA PATAK, NEAR GOKUL SHOPPING CENTRE, BORIVALI (W) MUMBAI - 400092 PAN: AAEFD5115D ( / APPELLANT) ( / RESPONDENT) ./ ITA NO. 7210 /M/201 2 ( / ASSESSMENT YEAR ; 200 5 - 0 6 ) D.J. BUILDERS & DEVELOPERS, A/103, MRUDOKISHORE CHS LTD. SVP RD. DATTAPOADA PATAK, NEAR GOKUL SHOPPING CENTRE, BORIVALI (W) MUMBAI - 400092 PAN: AAEFD5115D / VS. ACIT 15(3) R.NO.109, MATRU MANDIR, 1 ST FLOOR, TARDEO RD, MUMBAI - 400007 ( / APPELLANT) ( / RESPONDENT) REVENUE B Y : SHRI LOVE KUMAR (DR) ASSESSEE BY : SHRI RAJ KUMAR SINGH (AR) / DATE OF HEARING : 25 . 0 2 .201 5 / DATE OF PRONOUNCEMENT : 11 .0 3 .201 5 / O R D E R PER D. KARUNAKARA RAO, A . M . : THESE ARE THE CROSS APPEALS FILED BY THE A SSESSEE AND THE REVENUE AGAINST THE ORDER OF THE CIT( A) - 26 MUMBAI DATED 14.9.2012 FOR THE ASSESSMENT IT A NO S . 7210 & 7143 /M/201 2 2 YEAR 2005 - 06. THE IMPUGNED ORDER RELATES TO LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 2 . AT THE OUTSET , LD. COUNSEL FOR THE ASSESSEE FILED A CHART AND SUBMITTED THAT THE AO MADE AN ADDITION OF RS.30 , 86 , 792/ - IN THE ASSESSMENT . IN THE QUANTUM APPEAL, T HE MATTER FINALLY TRAVELED TO HONBLE ITAT VIDE ITA NO.1529/M/2010 & ITA NO. 8598/M/2010. THE TRIBUNAL PASSED AN ORDER DATED 30.08.2013. THE LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARA S 14 TO 19 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) DATED 30.8.2013 AND SUBMITTED THAT THE SUM OF RS.40 , 00 0/ - WAS FINALLY CONFIRMED AND BALANCE OF ADDITION WAS SET ASIDE AND THE MATTER WAS REMANDED TO THE FILE OF THE AO FOR FRESH EXAMINATION AFTER GRANTING A REASONABL E OPPORTUNITY TO THE ASSESSEE. THE PENALTY IN QUESTION RELATES TO THE STAID ADDITION OF RS.30 , 86 , 792/ - . T HE CIT(A) GRANTED A PART RELIEF, THEREFORE, BOTH THE PARTIES IN LITIGATION BEFORE US. RELYING ON THE SAID ORDER OF THE TRIBUNAL IN THE ASSESSEE S OWN CASE ON THE QUANTUM APPEAL (SUPRA) , LD. COUNSEL SUBMITTED THAT BOTH THESE APPEALS ARE REQUIRED TO BE SET ASIDE AND THE SAME SHOULD BE REMANDED TO THE FILE OF THE AO FOR FRESH CONSIDERATION OF LEVY OF PENALTY C ONSIDERING ACTS OF THE ASSESSING OFFICER O N THE DIRECTION GIVEN BY THE TRIBUNAL VIDE THE ORDER OF THE ITAT DATED 30.08.2013 . 3. O N HEARING BOTH THE PARTIES AND ON PERUSAL OF THE CITED PARAGRAPH S 14 TO 19 OF THE AFOREMENTIONED ORDER OF THE TRIBUNAL , WE FIND THE ISSUE RELATE D TO ADDITION OF RS.30 ,8 6,7 92/ - WAS SUBSTANTIVELY REMANDED FOR FRESH EXAMINATION AFTER GRANTING BENEFIT OF CROSS EXAMINATION AND PARA 19 OF THE SAID ORDER OF THE TRIBUNAL IS RELEVANT HERE . P ARA 20 OF THE SAID ORDER OF THE TRIBUNAL IS RELEVANT IN RESPECT OF THE CONFIRMED ADDITION OF RS.40 ,0 00/ - I.E. IN FAVOUR OF THE REVENUE. CONSIDERING OVERALL FACTUAL MATRIX OF THE CASE , WE ARE OF THE OPINION THAT THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IS NOT JUSTIFIA BLE WHEN THE MATTER IS RESTORED TO THE FILE OF THE AO BY THE TRIBUNAL IN QUANTUM APPEAL AND THE SAME IT A NO S . 7210 & 7143 /M/201 2 3 IS STILL PENDING B EFORE THE AO DESPITE ONE OF THE ADDITION S IS CONFIRMED. HOWEVER, AO MAY INITIATE THE PENALTY PROCEEDINGS U/ S. 2 71( 1)(C) OF THE ACT CONSIDERING HIS DECISION ON THE MERITS IN THE REMAND PROCE EDINGS. ACCORDINGLY, WE ORDER . 4 . IN THE RESULT BOTH APPEALS REVENUE AND ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 . 0 3 . 201 5 . 11 . 0 3 . 201 5 SD/ - SD/ - (D. MANMOHAN ) ( D. KARUNAKARA RAO ) VICE PRESIDENT ACCOUNTANT MEMBER / MUMBAI ; / DATED 11.03 . 201 5 * PATEL / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / THE DR CONCERNED BENCH , 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI