ESSEM CAPITAL MARKET LTD, MUMBAI V. DCIT 4(1), MUMBAI

ITA 90/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48680 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SANGATE
• Assessee Lawyers: M RAHUL LATHI
• Keywords: Set aside
• Section: 80IB

Judgement Text

1 ITA NO. 90/MUM/2010 (ASST YEAR 2004-05) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH, AM & SHRI VIJAY PAL RAO , JM ITA NO. 90/MUM/2010 (ASST YEAR 2004-05) M/S ESSEM CAPITAL MARKET LTD 22 MANSUR BLDG 98 SHAMLDAS GANDHI MARG MUMBAI 400 002 VS THE DY COM MR OF INCOME TAX 4(1), MUMBAI PAN NO. AAACE3045Q ASSESSEE BY SHRI M RAHUL LATHI REVENUE BY SHRI D SANGATE DR ORDER ORDER ORDER ORDER PER VIJAY PAL RAO: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 14.10.2009 OF THE CIT(A)-VIII, MUMBAI ARISING FROM THE PENALTY ORDER PASSED U/S 271(1) (C) OF THE I T ACT FOR THE ASSESSMENT YEAR 2004- 05. 2 THE ONLY ISSUE ARISES FOR OUR CONSIDERATION AND AD JUDICATION IS WHETHER THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) IS JUSTI FIED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)( C) OF THE ACT. 3 THE PENALTY IN THIS CASE WAS LEVIED AGAINST THE DISA LLOWANCE OF DEDUCTION U/S 80IB (10). THE LD AR OF THE ASSESSEE HAS POINTED OUT TH AT IN THE QUANTUM APPEAL, THE TRIBUNAL HAS SET ASIDE THE ISSUE OF DISALLOWANCE O F DEDUCTION U/S 801B(10) TO THE RECORDS OF THE ASSESSING OFFICER . THEREFORE, PENALTY BASED ON THE DISALLOWANCE OF THE DEDUCTION IS NOT SUSTAINABLE BECAUSE THE DISALLOWA NCE ITSELF IS NO MORE IN EXISTENCE. THE LD DR, ON THE OTHER HAND, WHILE SUPPO RTING THE ORDERS OF THE 2 ITA NO. 90/MUM/2010 (ASST YEAR 2004-05) AUTHORITIES BELOW, SUBMITTED THAT THE ASSESSING OFFICER MAY BE GIVEN THE LIBERTY TO TAKE APPROPRIATE STEPS AS PER OUTCOME OF THE REMAND PR OCEEDINGS. 4 AS EVIDENT FROM THE ORDER DATED 25 TH FEB 2011 IN ITA NOS 6814/MUM/2006 & 5349/MUM/2007, THE TRIBUNAL HAS SET ASIDE THE ISSUE OF DEDUCTION U/S 801B(10) TO THE RECORDS OF THE ASSESSING OFFICER; THEREFORE, PENAL TY BASED ON THE DISALLOWANCE, WHICH HAS ALREADY BEEN SET ASIDE WILL NOT SURVIVE. A CCORDINGLY, WE CANCEL THE PENALTY LEVIED U/S 271(1)(C ) OF THE ACT WITH A LIBERTY TO THE ASSESSING OFFICER TO TAKE APPROPRIATE ACTION, IF NECESSARY AS PER THE OUTCO ME OF THE REMAND PROCEEDINGS. 5 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON THE 27 TH , DAY OF APRIL 2011. SD/ SD/- ( ( ( ( RAJENDRA SINGH RAJENDRA SINGH RAJENDRA SINGH RAJENDRA SINGH ) )) ) ACCOUNTANT MEMBER ( ( ( ( VIYAJ PAL RAO VIYAJ PAL RAO VIYAJ PAL RAO VIYAJ PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH , APRIL 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI