KAYCEE SHARES BROKING P.LTD, MUMBAI V. DCIT CC 46, MUMBAI

ITA 7479/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7776 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Keywords: Opportunity of being heard

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 7479/ MUM/ 201 4 ( / ASSESSMENT YEAR : 20 0 8 - 09 ) M/S KAYCEE SHARES BROKING PVT LTD., 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 / APPLI CANT 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 FI LED BY THE ASSESSEE AND IT IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A), MUMBAI, DATED 31.10.2014 FOR THE ASSESSMENT YEAR 20 0 8 - 09 . 2. ONLY GROUND RAISED BY THE ASSESSEE IN THIS APPEAL PERTAINS TO CONFIRMATION OF PENALTY OF RS. 10,47, 000/ - BY THE LD.CIT(A ) AS IMPOSED BY 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 7479 / MUM/ 201 4 IMPOSED BY THE AO AND WHICH IS A SUBJ ECT MATTER OF THE PRESENT APPEAL HAS BEEN DELETED BY THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.20 /MUM/201 3 (AY - 200 8 - 09 ) DATED 9.9.2016 , THEREFORE, THE PENALTY HAVE NO LEGS TO STAND AND BE DELETED. 4. THE LD.D R VERY FAIRLY AGREED TO THE CONTENTIONS OF THE LD.AR. 5 . 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 IN QUANTUM APPEAL OF THE ASSESSEE (SUPRA), TH E QUANTUM HAS BEEN SET ASIDE TO THE FILE OF THE AO FOR RE - DETERMINING THE TOTAL INCOME OF THE ASSESSEE AS PER DIRECTION GIVEN BY THE TRIBUNAL. WE ARE THEREFORE OF THE CONSIDERED VIEW THAT THE PENALTY HAS NO LEGS TO STAND WHEN THE ISSUE OF QUANTUM ADDIT ION HAS BEEN RESTORED BACK TO THE AO FOR REDETERMINATION BY THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) WHILE DECIDING THE ISSUE THE TRIBUNAL VIDE PARA 9.3 HAS OBSERVED AND HELD AS UNDER : 9.3 IN CONCLUSION, WE, THEREFORE, SET - ASIDE THE ORDER OF THE CI T(A) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO REDETERMINE THE TOTAL INCOME AS PER AFORESAID DIRECTIONS. NEEDLESS TO MENTION, THE ASSESSING OFFICER SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE RECOMPUTING TH E INCOME AS PER LAW. 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA), SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY AND ALSO DIRECT THER AO TO DECIDE THE ISSUE OF PENALTY U/S 271(1)(C) OF THE ACT IN THE SET ASIDE PROCEEDINGS IN TERMS OF DECISION OF THE TRIBUNAL IN ITA 3 7479 / MUM/ 201 4 NO. ITA NO.7480/MUM/2014 (AY - 2009 - 10) DATED 9.9.2016 IN ASSESSEES OWN CASE. 7 . IN VIEW OF THE ABOVE FINDINGS OF THE TRI BUNAL, WE DIRECT THE AO TO DELETE THE PENALTY. 8 . IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH 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 FORW ARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI