AVANCE TECHNOLOGIES LTD, MUMBAI V. ITO WD 8(1)-1, MUMBAI

ITA 8829/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92790 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-05-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 29-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C TRIPURA SUNDARI
• Assessee Lawyers: PUNITA BANSAL
• Section: 144

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A - BENCH , , BEFORE S/SH. I P BANSAL,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 8829 /MUM/20 11 , / ASSESSMENT YEAR - 20 02 - 03 M/S. A VANCE TECHNOLOGIES LTD. 505, MIDAS C HAMBERS, OFF LINK ROAD , ANDHERI(E) , MUMBAI - 400 053 PAN: AAACV 2723 J VS ACIT - 8(1) - 1 AAYKAR BHAV AN,M K ROAD, NEW MARINE LINES MUMBAI - 20 ( / A PPELLANT ) ( / RESPONDENT ) /ASSESSEE BY :MS. PUNITA BANSAL / REVENUE BY : MS. C. TRIPURA SUNDARI / DATE OF HEARING : 03 - 0 6 - 2015 / DATE OF PRONOUNCEMENT :03 - 0 6 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING TH E ORDER, DT. 10.9.2011 OF CIT(A) - 16, MUMBAI, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : THE LD.CIT(A), MUMBA I SERIOUSLY ERRED IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IN NOT CONDONING THE GENUINE AND BONAFIDE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A), AND IN APPRECIATING THAT THE CIRCUMSTANCES WERE BEYOND THE CONTROL OF YOUR APPELLANT AND IN ALSO DRAWING VERY DAMAGING ADVERSE ALLEGED INFERENCES. THE GENUINE AND BONAFIDE DELAY IN FILING THE APPEAL BE CONDONED AND DIRECTIONS BE GIVEN TO ADMIT THE APPEAL AND DISPOSE OFF THE SAME ON MERITS. VIDE ITS LETTER,DT.6.4.2014, FOLLOWING ADD ITIONAL G ROUNDS OF APPEAL HAVE ALSO BEEN FILED BY THE ASSESSEE : 1.THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, PENALTY U/S. 271(1)(C) HAS ILLEGALLY BEEN IMPOSED BY THE ASSESSING OFFICER, SPECIALLY WHEN THE ADDITION MADE BY THE ASSESSING OFFICER WERE DULY D ELETED BY THE CIT(A) AND ASSESSED INCOME BECAME THE RETURNED INCOME. 2. THAT THE AO WAS NOT CORRECT IN LAW IN IMPOSING THE PENALTY ON THE ASSESSEE VIDE ORDER DT. 28.09.2005 WHILE THE PENALTY NOTICE HAS BEEN ISSUED BEING 37/81/2009 - 10 DT.24.12.2009. DURING THE COURSE OF HEARING BEFORE US, THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE STATED THAT ADDITIONAL GROUNDS WERE PURELY LEGAL IN NATURE AND WERE ARISING OUT OF THE ORDER OF THE CIT(A). WE HAVE GONE THROUGH THE ADDITIONAL GROUND S FILE D AND ARE OF THE OPINION T HAT THE SAME SHOULD BE ADMITTED,AS THEY DO NOT REQUIRE INQUIRY OF FACTS. 2. ASSESSEE - COMPANY, FILED ITS RETURN OF I NCOME ON 30.10. 20 02, DECLARI N G TOTAL INCOME AT RS. 3, 32, 980/ - .ASSESSING OFFICER( AO )COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT,ON 28. 3.2005, DETERMINING THE INCOME OF THE ASSESSEE AT RS.1,36,56,279/ - . HE DID NOT ALLOW THE EXEMPTION, CLAIM BY THE ASSESSEE ,U/S. 10A OF TH E ACT, AMOUNTING TO RS.1.33 CR ORES.HE ALSO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURAT E PARTICULARS OF INCOME. 8829/11 (02 - 03) AVANCE TECHNOLOGIES LTD. 2 AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY( FAA ) . HE ALLOWED THE CLAIM MADE BY THE ASSESSEE U/S.10A OF THE ACT.THE AO, WHILE GIVING EFFECT TO THE ORDER OF THE FAA, ASSESSED T HE INCOME OF THE ASSESSEE AT RS.3.32 LACS. MEANWHILE THE AO IMPOSED PENALTY U/S. 271(1)(C) OF THE ACT 28.29.05, AMOUNTING TO RS.47,56, 416/ - . 3. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FAA AGAINST THE PENALTY ORDER . HE FOUND THAT THE APPEAL WAS FILED L ATE BY 114 DAYS. AS PER THE FAA , NO SPECIFIC REASON FOR LATE FI LING OF THE APPEAL WAS FURNISHED , THAT THE ASSESSEE WAS IN THE HABIT OF FILING APPEALS AFTER EXPIRY OF DUE DATES. HE REFUSED TO CONDONE THE DELAY AND HELD THAT APPEAL WAS NOT FIT FOR ADMISSION. 4. BEFORE US, THE AR STATED THAT QUANTUM APPEAL HAD BEEN DECIDED IN FAV OU R OF THE ASSESSEE , THAT THE DEP ARTMENT DID NOT FILE APPEAL BEFORE THE TRIBUNAL, THAT THE RETURNED INCOME AND ASSESSED INCOME WAS SAME, THAT DUE TO CERTAIN EMERGENCIES THE APPEAL AGAIN ST THE PENALTY ORDER COULD NOT BE FILED ON TIME BEFORE THE FAA. DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE MATTER TO THE DISCRETION OF THE BENCH. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IN THIS CASE AN EX - PARTE ORDER WAS PASSED BY THE AO DISALLOWING THE 10A CLAIM MADE BY THE ASSESSEE , THAT THE FAA ALLOWED THE APPEAL FILED BY THE ASSESSEE , AS HE FOUND THAT ASSESSEE WAS ENTITLED FOR THE CLAIM MADE BY IT IN THE RETURN OF INCOME, THAT THE AO DID NOT CHALLENGE THE ORDE R OF FAA IN QUANTUM PROCEEDINGS, THAT THE AO IMPOSED PENALTY FOR FURNISHING OF INACCURATE PARTICULARS U/S. 271(1)(C) OF THE ACT. ON A SPECIFIC QUERY BY THE BENCH THE DR INFORMED THAT AS PER THE INFORMATION MADE AVAILABLE BY THE AO, NO APPEAL WAS FILED BY THE DEP AR T MEN T A GAINST THE QUANTUM ORDER OF THE FAA. IN OUR OPINION ONCE THE RETURNED INCOM E AND ASSESSED INCOME WERE SAME, THE PENALTY ORDER PASSED BY THE A O WOULD NOT SURVIVE. IN THESE CIRCUMSTANCE S THE EFFECTIVE GROUND OF APPEAL AND THE ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE ARE DECIDED IN ITS FAVOUR . IN OUR OPINION THE FAA WAS NOT JUSTIFIED IN DISMISSING THE APPEAL EVEN AFTER ACKNOWLEDGING THE FACT THAT QUANTUM APPEAL WAS DECIDED IN FAVOUR OF THE ASSESSEE . AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD , JUNE ,2015. 3 , 2015 SD/ - SD/ - ( /I P BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 03 .0 6 .2015 . . . JV . SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 8829/11 (02 - 03) AVANCE TECHNOLOGIES LTD. 3 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.