ASST CIT 11(3)(1), MUMBAI V. TOTAL LUBRICANT INDIA LTD, MUMBAI

ITA 894/MUM/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5374 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 09-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM I.T.A. NO. 894/MUM/2015 ( ASSESSMENT YEAR: 2004 - 05) ASST. CIT - 11(3)(1), R. NO. 427, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 0 20 VS. M/S. TOTAL LUBRICANTS INDIA LTD. (NOW KNOWN AS TOTAL OIL INDIA PVT. LTD.) 3 RD FLOOR, THE LEELA GALLERIE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400 059 PAN/GIR NO. AAACE 1877 C ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI V. JUSTIN RESPONDENT BY : SHRI NIRAJ SHETH DATE OF HEARING : 01.05.2018 DATE OF PRONOUNCEMENT : 30.07 .2018 O R D E R PER S HAMIM YAHYA, A. M.: THIS APPEAL BY THE R EVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.11 .2014 AND PERTAINS TO ASSESSMENT YEAR 2004 - 05. 2. T HE GROUNDS OF APPEAL RELATE TO THE DELETION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AMOUNTING TO RS.21,52,500/ - BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 3. AT THE OUTSET IN THIS CASE LEAR NED COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS ITAT ON MERITS OF THE CASE HAS QUASHED THE REASSESSMENT FOR THE CONCERNED ASSESSMENT YEAR. HENCE LEARNED COUNSEL OF THE ASSESSEE PLEADED THAT PENALTY LEVIED WITH REFERENCE TO THE ADDITION IN THE SAID ASSESSME NT DOES NOT SURVIVE. 2 ITA NO. 894/MUM/2015 M/S. TOTAL LUBRICANTS INDIA LTD. 4. PER CONTRA , THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT DISPUTE D THE PROPOSITION THAT FOR THE CONCERNED ASSESSMENT YEAR THE REASSESSMENT HAS BEEN QUASHED BY THIS ITAT. 5. UPON CAREFUL CONSIDERATION WE NOTE THAT THIS ITAT WITH R ESPECT TO THE APPEAL FOR THE CONCERNED ASSESSMENT YEAR IN ITA NO.7021/MUM/2011 FOR THE ASSESSMENT YEAR 2004 - 05 VIDE ORDER DATED 24.01.2018 HAS CONCLUDED AS UNDER : 9. IN THIS VIEW OF THE MATTER AND CONSIDERING THE RATIOS OF THE CASE LAWS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT RE - ASSESSMENT ORDER PASSED BY THE AO IS BAD IN LAW AS REOPENING OF ASSESSMENT WAS BASED ON MERE CHANGE OF OPINION WITHOUT ANY TANGIBLE MATERIAL IN HIS POSSESSION SUGGESTING ESCAPEMENT OF INCOME. THEREFORE, WE QUASH THE RE - ASSESSMENT O RDER PASSED BY THE AO. 10. INSOFAR AS MERITS OF THE CASE UNDER APPEAL, SINCE WE HAVE ALREADY HELD THAT THE REOPENING OF ASSESSMENT IS BAD IN LAW, WE ARE NOT INCLINED TO GO INTO THE MERITS OF DISALLOWANCE OF PROVISION FOR ENERGY EXPENSES AS IT BECOMES ACADE MIC IN NATURE. 10A. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN ITA NO. 7021/MUM/2011 IS ALLOWED. 6. F ROM THE ABOVE , IT IS CLEAR THAT SINCE THE REOPENING HAS BEEN QUASHED BY THE ITAT THE ADDITIONS DO NOT SURVIVE AND CONSEQUENTLY THE PENALTY LEVIED WIT H REFERENCE TO THE SAID ADDITIONS ALSO DO NOT SURVIVE. 7. ACCORDINGLY , WE DO NOT FIND ANY MERIT IN THIS APPEAL FILED BY THE R EVENUE. 8. IN THE RESULT, THE REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.07.2018 SD/ - SD/ - ( RAM LAL NEGI ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 30.07.2018 ROSHANI , SR. PS 3 ITA NO. 894/MUM/2015 M/S. TOTAL LUBRICANTS INDIA LTD. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI