NISRIN M. DEESAWALA, MUMBAI V. ITO 17(1)(3),

ITA 954/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6988 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAILESH DOSHI
• Assessee Lawyers: CHAITNYA ANJARIA
• Section: 271(1)(c)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI R. C. SHARMA , AM & HONBLE SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO . 1783 /MUM/2017 ( / ASSESSMENT YEAR: 2009 - 10 ) ITO 27(1)(4) 4 TH FLOOR, TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400 703 / VS. DHANANJAY N. SHINDE, RAMBHA TOWER, C - 103, GANGA WADI, LBS MARTG, GHATKOPAR(EAST), MUMBAI - 400 086 ./ ./ PAN/GIR NO. A RJPS3800N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SH. CHAITNYA ANJARIA , DR / RESPONDENTBY : SH. SHAILESH DOSHI, AR / DATE OF HEARING : 16/11 /201 8 / DATE OF PRONOUNCEMENT : 02/01/2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) - 25 , MUMBAI DATED 27.12.16 FOR AY 2009 - 10. 2 I.T.A. NO. 1783 /MUM/201 7 DHANANJAY N. SHINDE 2. AT THE OUTSET, IT WAS BROUGHT TO OUR NOTICE THAT WHEN PENALTY ORDER U/S 271(1)(C) WAS PASSED ON 29.03.14 AT THAT TIME THE APPEAL OF THE ASSESSEE CHALLENGING THE QUANTUM OF ADDITION S WAS PENDING BEFORE HONBLE ITAT, MUMBAI . CONSEQUENT THEREUPON, THE COORDINATE BENCH OF ITAT IN QUANTUM APPEAL HAD RESTORED THE MATTER BACK TO THE FILE OF AO FOR FRESH DETERMINATION. THEREFORE , IN VIEW OF ABOVE FACTS, LD. AR REQUESTED FOR DISMISSAL OF THE PRESENT APPEAL FILED BY THE REVENUE. 4. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND AFTER PERUSING THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES, WE FIND THAT S INCE THE PRESENT PENALTY PROCEEDINGS WERE BORNE OUT OF THE ASSESSMENT ORDER, WHICH HAS ALREADY BEEN SET ASIDE TO THE FILE OF AO BY THE ORDER OF HONBLE ITAT IN THE ABOVE CASE, T HEREFORE THE PENALTY ARISING OUT OF THE SAID ORDER DOES NOT STAN D ON ITS OWN. ALTHOUGH AFTER PERUSAL OF THE ORDER OF LD. CIT(A), WE FIND THAT THE PENALTY HAS BEEN DELETED ON MERITS AFTER TAKING INTO CONSIDERATION OF THE ENTIRE FACTS OF THE PRESENT CASE, EVEN 3 I.T.A. NO. 1783 /MUM/201 7 DHANANJAY N. SHINDE OTHERWISE, IN VIEW OF THE ABOVE FACTS, CIRCUMSTANCES AND DIS CUSSION, THE PENALTY ORDER PASSED BY AO ARE NOT SUSTAINABLE . MOREOVER, N O NEW FACTS O R CONTRARY JUDGMENTS HAVE B EEN BROUGHT ON RECORD I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD. CIT(A). THEREFORE, THERE ARE NO REASON S FOR US TO INTER FERE INTO OR DEVIATE FROM THE FINDINGS SO RECORDED BY THE LD.CIT(A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. 5 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JAN, 2019. SD/ - SD/ - ( R. C. SHARMA ) (SANDEEP GOSAIN) / AC OUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 02.01.2019 SR.PS . DHANANJAY 4 I.T.A. NO. 1783 /MUM/201 7 DHANANJAY N. SHINDE / 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 I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI