JTCIT (OSD) 13(3), V. SANJAY TRADE CORPORATION,

MA 11/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9125 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 06-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: H S PARIKH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P M JAGTAP , AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO. 11/MUM/2012 ARISING OUT OF ITA NO. 4429/MUM/2010 (ASST YEAR 2003-04 ) THE JT COMMR OF INCOME TAX(OSD) 13(3), MUMBAI VS M/S SANJAY TRADE CORPORATION 407 ADAMJI BLDG 413 N N ST MUMBAI 9 (APPLICANT) (RESPONDENT) PAN NO. AAAFS4078E ASSESSEE BY SH H S PARIKH REVENUE BY SH V KRISHNA MOORTHY DT.OF HEARING 27 TH JULY 2012 DT OF PRONOUNCEMENT 8 TH , AUG 2012 PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE REVENUE IS D IRECTED AGAINST THE ORDER DATED 15.7.2011 OF THE TRIBUNAL WHEREBY THE APPEAL FILED BY THE REVENUE AGAINST DELETION OF PENALTY LEVIED U/S 271(1)( C ) WAS DISM ISSED. 2 NOW, THE REVENUE HAS POINTED OUT IN THE MISCELLAN EOUS APPLICATION THAT THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL BY ASSUMING THAT THE QUANTUM HAS BEEN DELETED BY THE TRIBUNAL; THEREFORE, THE PE NALTY CEASED TO EXIST WHEREAS THE QUANTUM IN RESPECT OF WHICH DELETION OF PENALTY CHALLENGED BY THE REVENUE WAS ONLY REMITTED TO THE RECORDS OF THE ASSESSING OFFIC ER BY THE TRIBUNAL IN ITA NO.5727/MUM/2006 VIDE ORDER DATED 13.8.2010. M/S SANJAY TRADE CORPORATION MA NO.11/M/20012 2 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE ORDER OF THE TRIBUNAL PASSED IN QUANTUM APPEAL AS WELL AS TH E IMPUGNED ORDER DATED 15.7.2001. THIS TRIBUNAL IN PARA 3 OF ITS ORDER HA S OBSERVED AS UNDER: 3. LD REPRESENTATIVES FINALLY AGREE THAT THE RELATED QUANTUM ADDITIONS HAVE BEEN DELETED BY A COORDINATE BENCH, VIDE ORDER DATED 1 3.8.2010, AND A COPY OF THE SAID ORDER IS ALSO PLACED ON RECORD. IN V IEW OF THE FACT THAT QUANTUM ADDITION ITSELF IS DELETED, THE VERY FOUNDAT ION OF IMPUGNED PENALTIES CEASES TO EXIST. UNDER THESE CIRCUMSTANCES, WE UPHOL D THE COMMISSIONER OF INCOME TAX (APPEALS)S ACTION OF DELETING THE RELAT ED PENALTY, AND DECLINE TO INTERFERE IN THE MATTER. 3.1 THUS, IT IS CLEAR THAT THE REVENUES APPEAL WAS DISMISSED AND THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING T HE PENALTY WAS UPHELD ON THE GROUND THAT THE COORDINATE BENCH HAD DELETED THE QU ANTUM ADDITION VIDE ORDER DATED 18.8.2010. AS POINTED OUT BY THE LD DR, WE NOTE THAT IN THE QUANTUM APPEAL, THE ADDITION WAS NOT DELETED BUT REMITTED TO THE RE CORD OF THE ASSESSING OFFICER FOR DECIDING AFRESH. THEREFORE, WE ARE OF THE VIEW THAT THERE IS AN APPARENT MISTAKE IN THE IMPUGNED ORDER OF THIS TRIBUNAL IN PARA 3 WHERE BY THE WRONG FACT WAS TAKEN INTO CONSIDERATION. ACCORDINGLY, WE MODIFY PARA 3 AND T HE SAME MAY BE READ AS UNDER: 3. UNDISPUTEDLY, THE QUANTUM ADDITION HAS BEEN SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION VIDE ORDE R DATED 13.8.2010. IN VIEW OF THE ORDER IN THE QUANTUM APPEAL WHEREBY THE ADDI TION WAS SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER, THE PENALTY WOULD NOT SURVIVE; HOWEVER, THE ASSESSING OFFICER IS AT LIBERTY TO TAKE APPROPRIATE STEPS AS PER THE OUTCOME OF THE REMAND PROCEEDINGS. 4 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 8 TH , DAY OF AUG 2012. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 8 TH , AUG 2012 RAJ* M/S SANJAY TRADE CORPORATION MA NO.11/M/20012 3 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI