AVINASH SHANKAR, MUMBAI V. ITO WD 18(2)(3), MUMBAI

ITA 8072/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8599 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 23-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR DR
• Assessee Lawyers: DEEPAK R SHAH
• Section: 143(3); 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND , SHRI RAJENDRA, ACCOUNTANT MEMBER I.TA. NO. 8072/MUM/2010 ASSESSMENT YEAR 2003-04 AVINASH SHANKAR, 41-B, 4 TH FLOOR, FILM CENTRE, 68, TARDEO ROAD, MUMBAI 400 034. PAN: AAPPS 2910 J VS. INCOME TAX OFFICER, WARD 18(2)(3), PIRAMAL CHAMBERS, 1 ST FLOOR, PAREL, MUMBAI-400 012. ( / APPELLANT ) ( ! / RESPONDENT ) ' / APPELLANT BY : SHRI DEEPAK R. SHAH ! # ' / RESPONDENT BY : SHRI MANOJ KUMAR (DR) $ # %& / DATE OF HEARING : 01-10-2012 '() # %& / DATE OF PRONOUNCEMENT : 10-10-2012 * / O R D E R PER RAJENDRA, AM THE APPELLANT HAS FILED THIS APPEAL AGAINST THE ORD ER DT. 31-08-2010 OF THE CIT(A)-29, MUMBAI ON THE FOLLOWING GROUNDS: 1.THE GROUNDS OF APPEAL THAT FOLLOW ARE ALL INDEPEN DENT AND WITHOUT PREJUDICE TO EACH OTHER. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AS WELL AS ON FAC TS IN PASSING AN EX-PARTE ORDER WITHOUT APPRECIATING THE FOLLOWING FACTS: I.THAT THE APPELLANT HAD SOUGHT ADJOURNMENTS FROM T IME TO TIME ONLY BECAUSE THE QUANTUM I.TA. NO. 8072/MUM/2010 AVINASH SHANKAR, 2 APPEAL WAS PENDING DISPOSAL BY THE HIGHER AUTHORITI ES AND THE PENALTY PROCEEDINGS WERE INEXTRICABLY LINKED TO THE QUANTUM APPEAL; II.THAT THE APPELLANTS REPRESENTATIVE HAD DULY ATT ENDED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) ON 30 TH AUGUST 2010 WITH A REQUEST FOR AN ADJOURNMENT, BUT WAS GIVEN TO UNDERSTAND THAT THE CASE WAS BEING TRANSFERRED AND ACCORDINGLY THE LETTER OF ADJOURNMENT WAS NOT ACCEPTED BY THE COMMISSIONER OF INCOME TAX (APPEALS) OR HIS OFFICE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE PENALT Y OF RS. 395,093 LEVIED UNDER SECTION 271(1)( C ) OF THE INCOME TAX ACT, 1961 ON THE MERI TS OF THE CASE AND FAILED TO APPRECIATE THE FACTS THAT THE APPELLANT HAD NEITHER FURNISHED ANY INACCURATE PARTICULARS OF HIS INCOME NOR CONCEALED ANY INCOME. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR VARY ALL OR ANY OF THE GROUNDS OF APPEAL AS AND WHEN THE OCCASION ARISES. 2. ASSESSEE, AN ADVERTISING AND CREATIVE CONSULTANT FI LED HIS RETURN OF INCOME ON 27-11-2003 DECLARING INCOME OF RS. 4,130/-. ASSESS ING OFFICER (AO) FINALIZED THE ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 (ACT) ON 20-03-2006 ASSESSING THE ASSESSEES TOTAL INCOME AT RS. 27.43 LAKHS. AO MADE CERTAIN DIS-ALLOWANCES/ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE. HE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA). THIS A PPEAL WAS PARTIALLY ALLOWED. MEANWHILE, AO INITIATED PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE ACT. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, HE LEV IED PENALTY OF RS. 3,95,093/- UNDER THE SECTION 271(1)(C) OF THE ACT FOR FURNISHING INA CCURATE PARTICULARS OF INCOME. IN APPELLATE PROCEEDINGS, FAA CONFIRMED PENALTY ORDER OF THE AO. 3. BEFORE US, AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT QUANTUM APPEAL FILED BY THE ASSESSEE WAS SET-ASIDE BY THE H BENCH OF ITAT , MUMBAI VIDE ITS ORDER DT. 04- 11-2010 (ITA NO. 2985/M/07 A.Y. 2003-04). WE HAVE PERUSED THE ABOVE REFERRED ORDER OF THE TRIBUNAL. IT IS FOUND THAT TRIBUNAL A FTER CONSIDERING SUBMISSIONS OF THE ASSESSEE AND THE REVENUE HAD RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION AND VERIFICATION. 4. AS THE PENALTY IMPOSED IS DIRECTLY RELATED TO THE Q UANTUM APPEAL, SO, WE ARE OF THE OPINION IN THE INTERESTS OF JUSTICE, MATTER SHOULD BE RESTORED BACK TO THE AO FOR FRESH ADJUDICATION. HE IS DIRECTED TO RE-CONSIDER THE MA TTER IN LIGHT OF THE DECISION OF THE TRIBUNAL AND SHOULD AFFORD REASONABLE OPPORTUNITY O F HEARING TO THE ASSESSEE. GROUND NOS. 1 TO 3 ARE PARTLY ALLOWED IN FAVOUR OF THE ASS ESSEE. AS A RESULT, APPEAL FILED BY THE ASSESSEE STA NDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2012. SD/- SD/- ( . . / I.P. BANSAL ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI, +$ DATE: 10 TH OCTOBER, 2012 I.TA. NO. 8072/MUM/2010 AVINASH SHANKAR, 3 TNMM * * * * # ## # %, %, %, %, -,)% -,)% -,)% -,)% / COPY OF THE ORDER FORWARDED TO : 1. APP ELLANT 2. RESPONDEN T 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR A BENCH, ITAT, MUMBAI 6. GUARD FILE !,% % //TRUE COPY// *$ *$ *$ *$ / BY ORDER, . .. . / / / / / DY./ASSTT. REGISTRAR , / ITAT, MUMBAI