TANSY INVESTMENTS P.LTD, MUMBAI V. DCIT 8(3), MUMBAI

ITSSA 10/MUM/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3091 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 24-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Block assessment
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E,MUM BAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER IT(SS) A NO.10/MUM/2014 FOR (BLOCK PERIOD 01.04.198 8 TO 17.09.1998) M/S TANSY INVESTMENTS PVT. LTD. 1, ANUP, SUN BEAM CHS, NEW VERSOVA LINK ROAD, ANDHERI (W), MUMBAI-400053 PAN: AAACT4959N VS. DCIT 8(3), 217, 2 ND FLOOR, AAYAKAR BHAVAN, MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI STANY SALDANHA, DIRECTOR OF CO. REVENUE BY : SHRI AKHILENDRA YAD AV (DR) DATE OF HEARING : 25.01.2017 DATE OF PRONOUNCEMENT : 01.02.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL BY ASSESSEE U/S 253 OF THE INCOME-TAX A CT (ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [ FOR SHORT THE CIT(A)] 18, MUMBAI DATED 09.09.2014 FOR BLOCK PERIOD 01.04.1988 TO 17.09.1998. THE ASSESSEE HAS RAISED ONLY ONE SUBSTANTIAL GROUND OF APPEAL TH AT LD. CIT(A) ERRED IN LEVYING PENALTY THE PENALTY U/S 158 BFA (2) R.W.S. 275(1A) OF THE ACT OF RS. 21,62,460/-. 2. BRIEF FACTS OF THE CASE ARE THAT THE SEARCH AND SEI ZURE ACTION U/S 132 WAS CARRIED AT THE REGISTERED OFFICE OF THE COMPANY ON 17.09.1998. ACC ORDINGLY, A NOTICE U/S 158C WAS ISSUED ON 22.02.2000. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL UNDISCLOSED INCOME AT RS. NIL. THE ASSESSMENT WAS COMPLETED ON 25.09.2000 ASSESSING THE INCOME AT RS. 1,76,93,101/-. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) WHEREIN ASSESSEE WAS A LLOWED PART RELIEF, BOTH THE PARTIES FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL V IDE ORDER DATED 30.11.2007 SET ASIDE THE DISALLOWANCE OF INTEREST AND DEPRECIATION TO THE FILE OF ASSESSING OFFICER 2 IT(SS) A NO.10 /M/2014 M/S TANSY INVESTMENTS PVT. LTD. (AO). THE AO PASSED THE ORDER U/S 143(3) R.W.S. 254 OF THE ACT ON 30.12.2008 ASSESSING THE INCOME OF RS. 36,04,010/- BY MAKING D ISALLOWANCE OF DEPRECIATION. ON APPEAL, THE DISALLOWANCE WAS SUSTAINED BY LD. CIT(A ). AFTER ORDER OF LD. CIT(A), THE AO ISSUED NOTICE FOR LEVY OF PENALTY. NO REPLY WAS FILED BEFORE THE AO, HENCE THE AO LEVIED THE MINIMUM PENALTY OF RS. 21,62,104/- U/S 1 58 BFA(2). ON APPEAL BEFORE THE LD. CIT(A), THE PENALTY WAS SUSTAINED. THUS, THIS A PPEAL WAS FILED BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE. L D. AR OF THE ASSESSEE ARGUED THAT AGAINST THE ADDITION IN QUANTUM ASSESSMENT, TH E ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL IN IT(SS)A NO. 09/M/2 012 VIDE ORDER DATED 06.09.2016 ALLOWED THE APPEAL OF THE ASSESSEE. THE TRIBUNAL WH ILE ALLOWING THE APPEAL DIRECTED THE AO TO VERIFY IF THE DISALLOWANCE OF DEPRECIATI ON WAS SUBJECT MATTER OF ASSESSMENT U/S 143(3) IN RESPECT OF AY UNDER CONSIDERATION AND NO SUCH DISALLOWANCE CAN BE MADE IN THE BLOCK ASSESSMENT. THE LD. DR FOR THE RE VENUE NOT DISPUTED THE ORDER OF TRIBUNAL DATED 06.09.2016. WE HAVE CONSIDERED THE C ONTENTION OF BOTH THE PARTIES AND SEEN THAT THE TRIBUNAL MADE THE FOLLOWING ORDER ON THE ADDITION IN THE QUANTUM ASSESSMENT PROCEEDING: WE ARE OF THE VIEW THAT DISALLOWANCE CANNOT BE MAD E TWICE AS DISALLOWANCE ON ACCOUNT OF DEPRECIATION HAS ALREADY BEEN MADE IN TH E REGULAR ASSESSMENT. IN VIEW OF THIS OBSERVATION, THE ID. ASSESSING OFFICER IS D IRECTED IF DISALLOWANCE ON ACCOUNT OF DEPRECIATION HAS ALREADY BEEN MADE IN RE GULAR ASSESSMENT, THEN NO DISALLOWANCE CAN BE MADE AGAIN IN THE BLOCK ASSESSM ENT. THE RATIO LAID DOWN BY HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF VI KRARN A. DOSHI 256 ITR 129, VINOD DEANCHAND CHODAWAH 247 ITR 488 AND N.R. PAPER S & BOARDS LTD. 248 ITR 256(GUJ.). SINCE THE DISALLOWANCE OF DEPRECIATI ON WAS SUBJECT MATTER OF ASSESSMENT U/S 143(3), IN RESPECT OF ASSESSMENT YEA R UNDER CONSIDERATION, NO SUCH DISALLOWANCE AGAIN CAN BE MADE IN THE BLOCK ASSESSM ENT, THUS, THE APPEAL OF THE ASSESSEE, ON ACCOUNT OF DEPRECIATION, IS THEREFORE, ALLOWED. 4. CONSIDERING, THE DECISION OF CO-ORDINATE BENCH, WHE REIN THE AO IS DIRECTED TO DELETE THE DISALLOWANCE OF DEPRECIATION IN BLOCK ASSESSMEN T, SINCE THE SAME WAS SUBJECT MATTER OF ASSESSMENT U/S 143(3). SINCE THE ADDITION HAS BEEN DELETED BY THE TRIBUNAL IN QUANTUM PROCEEDINGS, PENALTY LEVIED BY THE AO IS LIABLE TO BE SET-SIDE. WE ORDER ACCORDINGLY. 3 IT(SS) A NO.10 /M/2014 M/S TANSY INVESTMENTS PVT. LTD. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST FEBRUARY, 2017. SD/- SD/- (B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 01/02/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/