Appeal details
Counselvise Citation
[2017] 126 COUNSELVISE.COM (IT) 9985 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 8 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-08-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
E
Assessment Year
2007-2008
Appeal Filed On
29-12-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI G S PANNU, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 7741/MUM/2014 ASSESSMENT YEAR : 2007 2008 ESSEL PROPACK LTD (FORMERLY ESSEL PACKAGING LTD) TOP FLOOR, TIMES TOWER, KAMLA CITY, SENATI BAPAT MARG, LOWER PAREL MUMBAI 400 013 PAN AAACE1568L VS DCIT CIRCLE 6(2) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JAY BHANSALI RESPONDENT BY : SHRI V JUSTIN DATE OF HEARING : 23 . 08 .2017 DATE OF PRONOUNCEMENT : 30 .0 8 .2017 O R D E R PER PAWAN SINGH, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE U/S. 253 OF THE I T A CT, IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-12, MUMBAI, DATED 20.10.201 4 FOR A Y 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. CIT (A) ERRED IN LAW AND FACTS IN UPH OLDING PENALTY U/S 271(1 )(C) OF THE ACT IN RESPECT OF ADDITION TO INC OME ON ACCOUNT OF INCLUSION OF MODVAT CREDIT IN INVENTORIES. THE REAS ONS GIVEN BY HIM FOR DOING SO ARE WRONG, CONTRARY TO THE FACTS OF TH E CASE AND AGAINST THE PROVISIONS OF LAW. 2. THE LD. CIT (A) ERRED IN LAW AND FACTS IN UPHO LDING PENALTY U/S 271(1 )(C) SOLELY ON THE BASIS OF ADDITION MADE IN ASST. ORDER ITA NO.7741/MUM/2014 ESSEL PROPACK LTD 2 WITHOUT DISCHARGING THE ONUS AND PROVING CONCEALMEN T OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. THE REASONS GIVEN BY HIM FOR DOING SO ARE WRONG, CONTRA RY TO THE FACTS OF THE CASE AND AGAINST THE PROVISIONS OF LAW. 3. THE LD. CIT (A) ERRED IN LAW AND FACTS IN UPHO LDING PENALTY U/S 271(1)(C) WITH REFERENCE TO ADDITION MADE TO INVENT ORIES FOR THE MODVAT CREDIT U/S 145A WHICH IS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME BUT ONLY DIFFERENCE OF OPINION AS CLOSING STOCK AUTOMATICALLY BECOMES OPEN ING STOCK OF SUBSEQUENT YEAR AND SECTION 145A REQUIRES PURCHASES / SALES. INVERTORIES ALL TO BE ADJUSTED TO TAXES, DUTY ETC. HENCE HAS NO TAX EFFECT. 4. THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 5. THE APPELLANT CRAVES THE LEAVE AND ADD, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT U/S. 143(3) WAS COMPLETED ON 20.12.2010. THE ASSESSING OFFICER MAD E ADDITION OF ` 3,55,56,741/- ON ACCOUNT OF INCLUSION OF CENVAT CRE DIT IN VALUATION OF STOCK. ON APPEAL, THE CIT(A) UPHELD THE ACTION OF THE ASSE SSING OFFICER. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND T HE TRIBUNAL VIDE ORDER DATED 12.02.2014 REMANDED THE MATTER BACK TO THE FI LE OF THE ASSESSING OFFICER WITH A DIRECTION TO MAKE ADJUSTMENT OF CENV AT CREDIT TO PURCHASE AND SALES. IN THE MEANTIME, THE ASSESSING OFFICER, VIDE ORDER DATED 20.03.2013, LEVIED PENALTY U/S. 271(1)(C) AMOUNTING TO ` 1,06,67,022/- @100% OF THE TAX SOUGHT TO BE EVADED. THE LEARNED CIT(A) UPHELD THE PENALTY HENCE, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NO.7741/MUM/2014 ESSEL PROPACK LTD 3 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD ALONG WITH THE ORDERS OF THE AUTHORITIES BEL OW. DURING THE COURSE OF HEARING, THE LEARNED DR FAIRLY CONCEDED THAT MATTER WAS REMANDED TO THE FILE TO THE ASSESSING OFFICER BY THE TRIBUNAL ON 12.02.2 014. CONSIDERING THE FACT THAT THE ORIGINAL ORDER ON QUANTUM ASSESSMENT ON TH E BASIS OF WHICH PENALTY WAS LEVIED HAS BEEN SET ASIDE TO THE FILE OF THE AS SESSING OFFICER, IN OUR CONSIDERED OPINION, PENALTY ORDER DOES NOT SURVIVE. THUS, THE PENALTY LEVIED BY THE ASSESSING OFFICER IS SET ASIDE. HOWEVER, TH E ASSESSING OFFICER WOULD BE AT LIBERTY TO INITIATE PENALTY PROCEEDING, IF AN Y, AFTER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF AUGUST, 2017. SD/- SD/- (G S PANNU) (PAWAN S INGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 30 TH AUGUST, 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI 4. THE CIT 5. DR, E BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI
