NEEPA REAL ESTATES P. LTD, MUMBAI V. ITO 9(2)(3), MUMBAI

ITA 971/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2729 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 12-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M KESHKAMAS S RANA
• Assessee Lawyers: KETAN TRIVEDI
• Keywords: Bogus purchase
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE S/SHRI R.S.SYAL, AM & SMT, ASHA VIJAYARAGHAV AN,JM I.T.A. NO.971 /MUM/2009 ASSESSMENT YEAR: 2003-04 NEEPA REAL ESTATES P.LTD., V. THE I.T.O. 9(2)(3), SHETH HOUSE, VASANT VALLEY, NEAR AAYAKAR BHAVAN, M. K. ROAD, DINDOSHI BUS DEPOT GEN A.K.VAIDYA MARG, MUMBAI. MALAD (E), MUMBAI-97 PA NO.AAACN 1884 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KETAN TRIVEDI REVENUE BY : SHRI S.M.KESHKAMA/S.S.RANA (DR) O R D E R PER R.S.SYAL, AM THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER DATED 1.1.2009 PASSED BY THE CIT(A)-IX , MUMBAI IN RELATION TO ASSESSMENT YEAR 2 003-04. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST CONFIRMA TION OF PENALTY OF RS.34,75,581/- U/S.271(1)(C) OF I.T.ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT, IN THE RELEVAN T ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER HAD MADE THE ADDITIONS FOR CL AIMING BOGUS PURCHASES TO THE RETURNED INCOME, WHICH HAD BEEN CONFIRMED BY LEARNED CIT(A) AND PURSUANT THERETO, THE ASSESSING OFFICER HAD INITIATED THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND LEVIED THE PENALTY OF 34,75,581 @ 100% OF TAX SOUGHT TO BE EVADED. 4. ON APPEAL, LEARNED CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ITAT MUMBAI I BENCH IN THE CASE OF THE ASSESSEE IN QUA NTUM APPEAL IN ITA NO.2382 VIDE ORDER DATED 12.8.2009 FOR A.Y. 2003-04 HAVE DELETED THE ADDITIONS. HE SUBMITTED THAT AS THE VERY 2 BASIS FOR LEVY OF PENALTY HAS BEEN DELETED BY THE T RIBUNAL, THE PENALTY LEVIED U/S.271(1)(C) IS LIABLE TO BE CANCELLED A COPY OF THE ORDER OF T HE TRIBUNAL IS PLACED ON RECORD. 6. ON THE OTHER HAND, LEARNED D.R. SUPPORTED THE OR DERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD BOTH THE SIDES AND HAVE PERUSED TH E RECORD OF THE CASE AS WELL AS THE ORDER OF THE TRIBUNAL DATED 12.8.2009 IN QUANTUM AP PEAL (SUPRA). SINCE THE ADDITIONS IN QUANTUM APPEAL, WHICH WERE THE BASIS FOR LEVYING T HE PENALTY HAVE BEEN DELETED BY THE TRIBUNAL, THEREFORE, THE PENALTY ORDER OF ASSESSING OFFICER AS CONFIRMED BY LEARNED CIT(A) HAS NO LEGS TO STAND. CONSEQUENTLY, WE DELETE THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A). 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STANDS ALLO WED. PRONOUNCED ON 9 TH DECEMBER, 2009 SD/- SD/- (ASHA VIJAYARAGHAVAN) ( R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 9 TH DECEMBER , 2009. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, BJ BENCH, I.T.A.T., MUMBAI. PARIDA BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. 3 DATE INITIALS SR.P.S 1. DRAFT DICTATED ON 8.12. 2009 2. DRAFT PLACED BEFORE AUTHOR 8..12.2009 3. DRAFT PROPOSED & PLACED BEFORE THE JM/AM SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY JM/AM SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR.PS SR .PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR. P S 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE OF DISPATCH OF ORDER