DCIT-6, PUNE, Pune V. SUNSHINE PAVINGS PVT. LTD, Pune

ITA 79/PUN/2010

• Counselvise Citation: 7924514 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 18-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P R MORE
• Assessee Lawyers: NILESH KHANDELWAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 79/PN/2010 (ASSTT. YEAR: 2001-02) DY. COMMISSIONER OF INCOME-TAX, .. APPELLANT CIR.6, PUNE VS. SUNSHINE PAVINGS P LTD. 16 GULMOHAR GARDENS, KOREGAON PARK, PUNE PAN AAECS 3389P APPELLANT BY: SHRI P R MORE RESPONDENT BY: SHRI NILESH KHANDELWAL ORDER PER G.S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, PUNE DATED 30.10.2009 WHICH, IN TURN, HAS ARISEN FROM A PENALT Y ORDER DATED 30.5.2008 PASSED BY THE ASSESSING OFFICER UNDER SEC TION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), P ERTAINING TO THE ASSESSMENT YEAR 2001-02. 2. THE ONLY ISSUE IN THIS APPEAL RELATES TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT IMPOSED BY THE ASSESSING OFFICER VIDE ORDER DATED 30.5.2008, WHICH HAS SINCE BEEN CANCELLED BY THE COMMISSIONER OF INCOME- TAX (APPEALS). 3. THE BACKGROUND IS THAT AN ASSESSMENT UNDER SECTI ON 143(3) OF THE ACT WAS FINALIZED ON 31.3.2004 DETERMINING THE TOTAL IN COME AT RS 22,45,810/- AS AGAINST RETURNED INCOME OF RS 3,81,122/-. IN THE CO URSE OF THE ASSESSMENT PROCEEDINGS, PENALTY PROCEEDINGS UNDER SECTION 271( 1)(C) OF THE ACT WERE INITIATED. THE ASSESSING OFFICER IMPOSED PENALTY UN DER SECTION 271(1)(C) OF THE ACT VIDE ORDER DATED 30.5.2008. BEFORE THE COMMISSI ONER OF INCOME-TAX ITA NO 79/PN/10 SUNSHINE PAVINGS P LTD. PUNE 2 (APPEALS), THE ASSESSEE SUBMITTED THAT APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER UNDER SECTION 143(3) DATED 31.3.2004 WAS DECI DED BY THE FIRST APPELLATE AUTHORITY ON 20.12.2004 AND, THEREFORE, AS PER THE PROVISO TO SECTION 275(1)(A) OF THE ACT, THE ORDER UNDER SECTION 271(1)(C) SHOULD H AVE BEEN PASSED ON OR BEFORE 31.3.2006. SINCE THE ASSESSING OFFICER PASSED THE O RDER UNDER SECTION 271(1)(C) ON 30.5.2008, THE SAME WAS CLAIMED TO BE BARRED BY LIMITATION OF TIME. THE COMMISSIONER OF INCOME-TAX (APPEALS) CONSIDERED THE PROVISIONS OF SECTION 275(1)(A) AND THE PROVISO THEREOF AND HELD THAT THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER ON 30.5.2008 WAS BARRED BY LIMITA TION, INASMUCH AS SUCH ORDER OUGHT TO HAVE BEEN PASSED ON OR BEFORE 31.3.2006. A CCORDINGLY, THE PENALTY LEVIED UNDER SECTION 271(1)(C) VIDE ORDER DATED 30. 5.2008 WAS CANCELLED. 4. BEFORE US, THE LEARNED REPRESENTATIVE FOR THE RE SPONDENT-ASSESSEE SUBMITTED THAT APART FROM THE REASONING TAKEN BY TH E COMMISSIONER OF INCOME- TAX (APPEALS), THE IMPUGNED PENALTY ORDER DATED 30. 5.2008 PASSED BY THE ASSESSING OFFICER WAS UNSUSTAINABLE, INASMUCH AS TH E ADDITION ON THE BASIS OF WHICH THE PENALTY HAS BEEN LEVIED, HAS SINCE BEEN S ET ASIDE BY THE TRIBUNAL BACK TO THE FILE OF THE ASSESSING OFFICER VIDE ITS ORDER IN ITA NO 1431/PN/09 DATED 25.3.2011. IT WAS, THEREFORE, CONTENDED THAT UNDER THESE CIRCUMSTANCES THE ULTIMATE CONCLUSION OF THE COMMISSIONER OF INCOME-T AX (APPEALS) CANCELLING THE IMPUGNED PENALTY IS QUITE JUSTIFIED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE, APPEARI NG FOR THE REVENUE, HAS NOT CONTESTED ANY OF THE FACTUAL MATRIX BROUGHT OUT BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN HIS IMPUGNED ORDER OR THAT MADE OUT BY THE LEARNED REPRESENTATIVE FOR THE RESPONDENT-ASSESSEE. 6. HAVING CONSIDERED THE AFORESAID FACTUAL MATRIX, IN OUR VIEW, THE ULTIMATE CONCLUSION OF THE COMMISSIONER OF INCOME-TAX (APPEA LS) TO CANCEL THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER ON 30.5.2008 IS UNEXCEPTIONAL AND IS HEREBY AFFIRMED. IN ANY CASE, THE ADDITION/DISALLOW ANCE LEADING TO THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS B EEN SET-ASIDE, THE CONSEQUENT ITA NO 79/PN/10 SUNSHINE PAVINGS P LTD. PUNE 3 PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT D OES NOT SURVIVE. ACCORDINGLY, THE ULTIMATE CONCLUSION OF THE COMMISSIONER OF INCO ME-TAX (APPEALS) IS AFFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF MAY, 2011. SD/- SD/- (I C SUDHIR) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 27 TH MAY, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. THE DCIT, CIR.6, PUNE 3. THE CIT(A)-III, PUNE 4. THE CIT-II, PUNE 5. THE D.R, A BENCH, PUNE 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, PUNE