ALAG SECURITIES P.LTD, MUMBAI V. DCIT CC (46), MUMBAI

ITA 7646/MUM/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7399 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 24-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Principle of natural justice
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 7646/MUM/2014 ASSESSMENT YEAR: 2004 - 05 M/S ALAG SECURITIES PVT. LTD., BLOCK H, SHRI SADASHIV CHS LTD., 6 TH ROAD, SANTACRUZ ( E), MUMBAI - 400055 PAN: AABCR1593B VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCEL 46, ROOM NO. 659, 6 TH FLOOR, AAYAKAR BHAWAN, M.K. ROAD, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MUKESH CHOKSHI (A R) REVENUE BY : SHRI RAM TIWARI ( DR) DATE OF HEARING: 18/05 /201 8 DATE OF PRONOUNCEMENT: 18 / 0 5 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 14/11/20 14 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 38 , MUMBAI , FOR THE A S S ESSMENT YEAR 2004 - 05 , WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271 (1) (C ) OF THE INCOME TAX ACT, 1961 (FOR SHOR T THE A CT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUND S : - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ORDER PASSED BY THE ASSESSIN G OFFICER U/S 271 (1)(C) OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ORDER OF 2 ITA NO . 7646 / MUM/2014 ASSESSMENT YEAR: 2004 - 05 ASSESSING OFFICER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING PENALTY U/S 271 (1)(C) OF THE ACT AT RS. 13,20,180/ - . 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT IN THE PRESENT CASE, THE ITAT MUMBAI HAS SENT THE QUANTUM APPEAL BA CK TO THE FILE OF AO FOR FRESH ADJUDICATION, THEREFORE THE IMPUGNED ORDER DOES NOT SURVIVE. ACCORDINGLY, THE LD. COUNSEL FURTHER SUBMITTED THAT THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) D ID NOT CONTROVERT THE FACT THAT THE ITAT, MUMBAI HAS RESTORED THE QUANTUM APPEAL TO THE FILE OF AO FOR FRESH ADJUDICATION. 5. WE HAVE PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE CONTENTION OF THE APPELLANT /ASSESSEE. IN THE PRESENT CASE, THE LD. CI T (A) CONFIRMED THE ADDITION MADE BY THE AO VIDE ASSESSMENT ORDER DATED 08.12.2011 PASSED U/S 153A READ WITH SECTION 143 (3) OF THE ACT. THE ASSESSEE CHALLENGED THE ORDER PASSED BY THE LD. CIT (A) BEFORE THE ITAT, MUMBAI. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, THE COORDINATE BENCH HAS RESTORED THE QUANTUM APPEAL OF THE ASSESSEE, ITA NO. 6049/MUM/2012 TO THE FILE OF THE AO FOR PASSING ASSESSMENT ORDER AFRESH VIDE ORDER DATED 07.07.2017 . 6. SINCE, THE QUANTUM APPEAL HAS BEEN RESTORED BACK TO T HE FILE OF AO FOR PASSING ASSESSMENT ORDER AFRESH, THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) DOES NOT SURVIVE. ACCORDINGLY, WE RESTORE THIS APPEAL ALSO TO THE FILE OF AO FOR PASSING ORDER AFRESH , IF NEEDED , AFTER PASSING ASSESSMENT 3 ITA NO . 7646 / MUM/2014 ASSESSMENT YEAR: 2004 - 05 ORDER IN TERMS OF ORD ER DATED 07.07.2017 PASSED BY THE COORDINATE BENCH IN ASSESSEES QUANTUM APPEAL ITA NO. 6049/MUM/2012 REFERRED ABOVE. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2004 - 20 0 5 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 18 TH MAY , 201 8 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 18 / 0 5 / 20 18 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI