NARGIS MAMDANI, MUMBAI V. ITO 20(2)(3), MUMBAI

ITA 7320/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3111 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 12-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DIFFERENT S PASSED
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , , , BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.7319/MUM/2013 & I.T.A.7320/MUM/2013 ( ! / ASSESSMENT YEAR: 2005-06 & 2006-07) MS. NARGIS MAMDANI B-706, AAKANKSHA TOWER, PANCHMARG, YARI ROAD, ANDHERI (W), MUMBAI - 400061 # / VS. INCOME TAX OFFICER WARD 20(2)(3 ) MUMBAI ./ ./ PAN/GIR NO. : AALPM3747R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 18.03.2016 !' /DATE OF PRONOUNCEMENT: 17.06.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THE ABOVE MENTIONED APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE DIFFERENT ORDERS PASSED BY THE COMMISSI ONER OF INCOME TAX (APPEALS)-31, MUMBAI [HEREINAFTER REFERRED TO A S THE CIT(A)] WHEREIN PENALTY LEVIED BY THE ASSESSING OFFICER FOR THE A.Y. 2005-06 & 2006-07 RESPECTIVELY HAS BEEN CHALLENGED. SINCE THE MATTER OF ASSESSEE BY: SHRI VIJAYKUMAR S. BIYANI DEPARTMENT BY: SHRI SUMIT KUMAR ITA NO.7319&7320/M/13 A.Y.2005-06&2006-07 2 CONTROVERSY IN BOTH THE APPEALS ARE SIMILAR IN NATU RE, THEREFORE, BOTH THE APPEALS ARE BEING TAKEN UP TOGETHER FOR ADJUDIC ATION FOR THE SAKE OF CONVENIENCE. 2. THE FACTS OF THE CASE FOR THE A.Y.2005-06 ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 03.04.2006 DECLARING TOTAL INCOME TO THE TUNE OF RS.1,86,366/- WHICH WAS PROCESSED U/ 143(1) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 18.03.2008 AND SERVED UPON THE ASSESSEE O N 19.03.2008. THE CASE WAS REOPENED ON RECEIPT OF THE AIR DATA WH EREIN THE ASSESSEE HAS SOLD THE PROPERTY AND PURCHASED THE PR OPERTY FOR CONSIDERATION OF RS.39,00,000/-. THE ASSESSEE HAS ALSO DEPOSITED AN AMOUNT OF RS.13,38,900/- IN THE SAVING BANK ACCOUNT . THEREAFTER THE ASSESSMENT OF THE ASSESSEE WAS COMPLETED BY ASSESSI NG THE INCOME OF THE ASSESSEE TO THE TUNE OF RS.27,00,266/- .AFTER P ASSING THE SAID ORDER THE ASSESSING OFFICER LEVIED THE PENALTY TO THE TUN E OF RS.8,46,178/- WHICH WAS UPHELD BY THE LEARNED CIT(A). THEREFORE THE ASSESSEE HAS FILED THE PRESENT APPEALS BEFORE US. 3. THE BRIEF FACTS OF THE CASE FOR THE A.Y.2006-07 ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 01.02.2008 D ECLARING TOTAL INCOME OF RS.1,21,241/- WHICH WAS PROCESSED U/S.143 (1) OF THE ACT AND THE NOTICE WAS ISSUED TO THE ASSESSEE AS PER TH E INFORMATION OF CASS. ACCORDINGLY NOTICES U/S. 143(2) AND 142(1) O F THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. AS PER THE IN FORMATION OF AIR ITA NO.7319&7320/M/13 A.Y.2005-06&2006-07 3 THE ASSESSEE DEPOSITED SUM OF RS.12,49,300/- IN HIS SAVING BANK ACCOUNT. THEREAFTER AN OPPORTUNITY WAS GIVEN TO THE ASSESSEE AS THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.14,54,627/-. SUBSEQUENTLY, THE ASSESSING OFFICER LEVIED THE PENA LTY TO THE TUNE OF RS.4,20,514/- WHICH WAS UPHELD BY THE LEARNED CIT(A ). THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US . 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECOR D CAREFULLY. THE ASSESSEE IN BOTH THE ASSESSMENT YEARS 2005-06 AND 2 006-07 CHALLENGED THE PENALTY TO THE TUNE OF RS.8,46,178/- AND RS.4,20,514/-. AT THE VERY OUTSET THE LEARNED REPRESENTATIVE OF TH E ASSESSEE HAS ARGUED THAT THE ASSESSMENT FOR THE YEAR 2005-06 AND 2006-07 HAS BEEN SET ASIDE BY THE INCOME TAX APPELLATE TRIBUNAL, MUM BAI BENCH IN ITA NOS. 2097 & 2098/MUM/ 2010 FOR THE A.Y.2005-06 AND 2006-07 THEREFORE, IN THE SAID CIRCUMSTANCES THE PENALTY IS LIABLE TO BE SET ASIDE HOWEVER THE SAME MAY FACE CONSEQUENTIAL RESULT OF F URTHER ASSESSMENT. COPY OF ORDER DATED 30.09.2015 IS ON T HE FILE WHICH SPEAKS ABOUT THE REASSESSMENT ON CERTAIN GUIDELINES GIVEN BY THE INCOME TAX APPELLATE TRIBUNAL IN ASSESSEES OWN CAS E. APPARENTLY THE MATTER IS REQUIRED TO BE REASSESSED AND RE-EXAM INED IN ACCORDANCE WITH LAW. SINCE THE QUANTUM OF ASSESSMENT OF THE R ELEVANT YEAR HAS BEEN ORDERED TO BE SET ASIDE THEREFORE, IN THE SAID CIRCUMSTANCES WE SET ASIDE THE PENALTY ORDER DATED 30.03.3011 IN QUESTIO N FOR THE ITA NO.7319&7320/M/13 A.Y.2005-06&2006-07 4 A.Y.2005-06 AND 2006-07. ACCORDINGLY THE ORDER O F LEARNED CIT(A) UNDER CHALLENGED ARE HEREBY SET ASIDE. ACCORDINGL Y, THE ABOVE MENTIONED APPEALS FILED BY THE ASSESSEE ARE ALLOWED . 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE HEREBY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JUNE , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 17 TH JUNE, 2016 MP MP MP MP $ % &' ( &! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ) / BY ORDER, - & //TRUE COPY// *'/ ' /(DY./ASSTT. REGISTRAR) ' + , , ' ( / ITAT, MUMBAI