ACIT CIRCLE- 16 (1), MUMBAI V. M/S TATA SKY LTD., MUMBAI

ITA 81/MUM/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0131 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRI SENIOR
• Section: 271(1)(c); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. 81/MUM/2020 ASSESSMENT Y EAR: 2009 - 10 & ITA NO. 82/MUM/2020 ASSESSMENT Y EAR: 2010 - 11 ASST. COMMISS IONER OF INCOME TAX, CIRCLE - 16(1), ROOM NO. 439, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S TATA SKY LTD., 3 RD FLOOR, C1, WADIA INTERNATIONAL CENTRE, WORLI, MUMBAI - 400025 PAN: AAGCS9294M (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SANJEEV KASHYAP (CIT D R) ASSESSEE BY : SHRI J.D. MISTRI ( SENIOR COUNSEL ) DATE OF HEARING: 23 /06 /20 21 DATE OF PRONOUNCEMENT: 06 / 07 /202 1 O R D E R PER SAKTIJIT DEY , JM CAPTIONED APPEALS BY THE REVENU E ARISE O UT OF TWO SEPARATE ORDERS, BOTH DATED 17.10.2019, OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 4, MUMBAI, DELETING THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT , 1961 FOR THE ASSESSMENT YEARS 2009 - 10 AND 2010 - 11. 2. AT T HE VERY OUTSET, SHRI J.D. MISTRI, LEARNED SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED , THE ADDITIONS BASED ON WHICH THE AS SESSING OFFICER (AO) IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT I N BOTH THE ASSESSMENT YEARS, IN THE MEANWHILE , HAVE BEEN DELETED BY THE TRIBUNAL WHILE DECIDING ASSESSEES APPEALS ARISING OUT OF THE ASSESSMENT ORDER PASSED FOR THE IMPUGNED ASSESS MENT YEARS. IN THIS CONTEXT, HE DREW OUR ATTENTION TO 2 ITA NO S . 81 & 82 / MUM/2020 ASSESSMENT YEAR S : 20 09 - 10 & 2010 - 11 OBSERVATIONS OF THE TRIBUNAL WHILE DELETING THE ADDITIONS MADE BY THE AO IN T HE QUANTUM PROCEEDINGS. THUS, HE SUBMITTED , WHEN THE ADDI TIONS HAVE BEEN DELETED , THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT , B ASED ON SUCH ADDITIONS , CANNOT SURVIVE. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , AGREED THAT THE ADDITION S BASED ON WHICH PENALTY UNDER SECTION 271(1) (C) OF THE ACT WERE IMPOSED HA VE BEEN DELETED BY THE TRIBUNAL, H OWEVER, HE SUBMITTED , THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF THE TRIBUNAL AND HAS PREFERRED FURTHER APPEAL BEFORE THE HON BLE JURISDICTION AL HIGH COURT. THUS, HE RELIED UPON THE OBSERVATIONS OF THE AO. 4. HAVING CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD, WE FIND THAT BASED ON CERTAIN ADDITIONS MADE IN THE ASSESSMENT ORDERS PASSED FOR THE IMPUGNED ASSESSMENT YEARS , T HE AO HAD INITIATED PROCEEDINGS FOR IMPOSITION OF PENALT Y UNDER SECTION 271(1) (C) OF THE ACT AND ULTIMATELY PASSED ORDERS IMPOSING PENALTY U NDER THE SAID PROVISION. PERTINENTLY , AGAINST THE ADDITIONS MADE IN THE ASSESSMENT ORDERS PASSED FO R THE IMPUGNED ASSES SMENT YEARS, T HE ASSESSEE HAD PREFERRED APPEALS BEFORE LEARNED COMMISSIONER (APPEALS). BEING P ARTLY SUCCESSFUL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE WENT IN FUR THER APPEAL BEFORE THE TRIBUNAL. E VEN , REVENUE ALSO PREFERRED APPEALS BEFORE THE TR IBUNAL CHALLENGING THE P ARTIAL RELIEF GRANTED BY LEARNED COMMISSIONER (APPEALS). WHILE DECIDING THE CROSS APPEALS, THE TRIBUNAL IN ITA NO. 3214/MUM/2014 AND OTHERS DATED 10.09.2020 READ WITH ORDER DATED 05.01.2021 PASSED IN MA NO. 254/MUM/2020 , DELETED ALL THE ADDITIONS MADE BY THE A O IN BOTH THE ASSESSMENT YEARS. THUS, IT IS AN ADMITTED FACTUAL POSITION THAT THE ADDITION S BASED ON WHIC H THE AO HAD IMPOSED PENALTY UNDER SECTION 271(1) (C) OF THE ACT ARE NO LONGER IN EXISTENCE. THAT BEING THE CASE, PENALTY IM POSED BASED ON SUCH ADDITIONS CANNOT SURVIVE. TAKING NOTE OF THE AFORESAID ORDERS PASSED BY THE TRIBUNAL, LEARNED COMMISSIONER (APPEALS) , FOR THE VERY SAME REASON , HAS DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. MERELY BECAUSE THE REVEN UE HAS NOT ACCEPTED THE DECISION OF THE TRIBUNAL IN QUANTUM PROCEEDINGS AND HAS 3 ITA NO S . 81 & 82 / MUM/2020 ASSESSMENT YEAR S : 20 09 - 10 & 2010 - 11 PREFERRED FURTHER APPEALS BEFORE THE HONBLE HIGH COURT , CANNOT BE A GROUND TO CONFIRM THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT. IN VIEW OF THE AFORESAID, WE DO N OT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN DELETING THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT IN BOTH THE ASSESSME NT YEARS UNDER DISPUTE. GROUNDS ARE DISMISSED. 7. IN THE RESULT, APPEAL S ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JULY , 2021 . SD/ - SD/ - ( RAJESH KUMAR ) ACCOUNTANT MEMBER ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 06 / 07 /202 1 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI