VISHESH DHATU INDUSTRIES P. LTD, MUMBAI V. DCIT 3(3), MUMBAI

ITA 8629/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100569 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-03-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 22-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANDHIR KUMAR GUPTA
• Keywords: Revised return
• Section: 43B; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , , BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 8629/MUM/2011 ( / ASSESSMENT YEAR : 2004 - 05 M/S. VISHESH DHATU INDUSTRIES PVT. LTD., 103, STEEL CENTRE, AHMEDABAD STREET, CARNAC BUNDER, MUMBAI - 400 009 / VS. THE DCIT - 3(3), MUMBAI ./ ./ PAN/GIR NO. : AABCV 0269N ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: NONE / RESPONDENT BY : SHRI RANDHIR KUMAR GUPTA / DATE OF HEARING : 04 . 0 8 .2015 / DATE OF PRONOUNCEMENT : 07 .0 8 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 7 , MUMBAI DT. 1 8 .10.201 0 PERTAINING TO ASSESSMENT YEAR 200 4 - 0 5 . ITA. NO . 8629/M/2011 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING PENALTY OF RS. 10,51,277/ - LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT. 3. IN THIS C ASE AS PER THE ORDER SHEET ENTRIES, A NOTICE WAS SERVED THROUGH RPAD TO THE ASSESSEE ON 21.1.2014. A SECOND NOTICE WAS ISSUED AGAIN THROUGH RPAD AND SERVED UPON THE ASSESSEE ON 23.9.2014. NO ONE ATTENDED ON BEHALF OF THE ASSESSEE NOR ANY AP PLICATION HAS BEEN MADE FOR THE ADJOURNMENT OF THE CASE. WE HAVE THEREFORE DECIDED TO PROCEED EX PARTE. 3.1. THE APPEAL IS LATE BY ONE DAY. THE ASSESSEE HAS REQUESTED FOR THE CONDONATION OF THE DELAY SUPPORTED BY AN AFFIDAVIT. WE HAVE CAREFULLY GONE TH ROUGH THE CONTENTS OF THE AFFIDAVIT. IN OUR CONSIDERED OPINION, THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FOR NOT FILING THE APPEAL ON TIME THEREFORE, THE DELAY OF ONE DAY IS CONDONED. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTA TIVE AT LENGTH WHO RELIED UPON THE ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED THE RELEVANT ASSESSMENT ORDER. IN THIS CASE, WE FIND THAT THE ORIGINAL RETURN WAS PROCESSED U /S. 143(1) ON 14.2.2005. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED U/S. 147 OF THE ACT. STATUTORY NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE ALONGWITH COPY OF THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THE ASSESSEE IN RESPONSE TO THE N OTICE FURNISHED THE RETURN OF INCOME. HERE, IT WOULD BE PERTINENT TO MENTION THE REASONS FOR REOPENING THE ASSESSMENT. THE AO FOUND THAT THE ASSESSEE HAS DEBITED INTEREST OF RS. 28.61 PAYABLE TO GIIC. THE AO WAS OF THE OPINION THAT SINCE THE INTEREST HA S NOT BEEN ITA. NO . 8629/M/2011 3 PAID AS PER THE PROVISIONS OF SEC. 43B OF THE ACT, THE SAME NEED TO BE DISALLOWED. 5.1. IN THE RETURN FURNISHED IN PURSUANCE TO THE NOTICE U/S. 148 OF THE ACT, THE ASSESSEE DISALLOWED THE INTEREST PAYABLE TO GIIC. THE AO COMPLETED THE ASSESS MENT BY MAKING THE FOLLOWING OBSERVATIONS AT PARA - 5 OF HIS ORDER WHICH READ AS UNDER: IN VIEW OF THE FACT THAT THE DISALLOWANCE HAS BEEN OFFERED IN THE RETURN OF INCOME, THE RETURNED INCOME IS ACCEPTED. 6. THE AO INITIATED THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALING TAXABLE INCOME. ACCORDINGLY, NOTICE WERE ISSUED AND SERVED UPON THE ASSESSEE ASKING THE ASSESSEE TO EXPLAIN WHY PENALTY U/S. 271(1)(C) OF THE ACT SHOULD NOT BE LEVIED. AFTER CONSIDERING THE SUBMISSIONS AND CERTAIN JUDICIAL DECISIONS, THE AO LEVIED THE PENALTY OF RS. 10,51,277/ - . 7. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 8. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 9. AS MENTIONED ELSEWHERE, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE UNDISPUTED FACT IS THAT IN THE REVISED RETURN OF INCOME, THE ASSESSEE HAS DISALLOWED THE INTEREST PAYABLE TO GIIC. IT IS ALSO AN UNDISPUTED FACT THA T THE REVISED RETURNED INCOME HAVE BEEN ACCEPTED BY THE AO WHICH MEANS THAT THE ASSESSED INCOME WAS SAME AS THE RETURNED INCOME. IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SURESH CHANDRA MITTAL 251 ITR 09 AND ALSO BY THE DECISION OF THE CO ORDINATE BENCH, CHANDIGARH IN ITA NO. 218/ C HD/2010 DATED 30.11.2011, ITA. NO . 8629/M/2011 4 IN OUR CONSIDERED OPINION WHEN THE RETURNED INCOME IS ALSO THE ASSESSED INCOME, MEANING THEREBY THAT THE RETURN HAS BEEN ACCEPTED BY THE AO , W E DO NOT FIND ANY REASON FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. WE, ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS ALLOWED. OR DER PRONOUNCED IN THE OPEN COURT ON 7 TH AUGUST , 2015 SD/ - SD/ - ( VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 7 TH AUGUST , 2015 . . ./ RJ , SR. 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