SCHRADER DUNCAN LTD, V. ASST CIT 10(3),

MA 26/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3492 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 02-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK ANAND PERAPURNA
• Assessee Lawyers: HARESH G BUCH
• Keywords: Question of law

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER M.A. NO.26/MUM/2015 (ARISING OUT OF ITA NO.8223/MUM/2010) / ASSESSMENT YEAR: 2004-05 M/S SCHRADER DUNCAN LIMITED, LBS MARG, MULUND (W), MUMBAI-400080 VS. ADDITIONAL COMMISSIONER OF INCOME-TAX (10)-3, MUMBAI ( / ASSESSEE) ( / REVENUE) P.A. NUMBER : AAAC S 0769H / ASSESSEE BY: SHRI HARESH G. BUCH / REVENUE BY SHRI VIVEK ANAND PERAPURNA / DATE OF HEARING : 21/08/2015 / DATE OF PRONOUNCEMENT : 21/08/2015 2 M/S SCHRADER DUNCAN LIMITED . O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS BY THE ASSESSEE S EEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 01 /01/2015 ON THE GROUND THAT WHILE DELIBERATING UPON THE ISSUE U /S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), THE TRIBUNAL DELETED THE PENALTY, BEING THE ISSUE, WAS DEBATABLE . THE LD. COUNSEL FOR THE ASSESSEE, SHRI HARESH G. BUCH, CONT ENDED THAT AT PAGE 9 OF THE ORDER, THE LAST FOUR LINES MAY BE EXPUNGED, WHICH ARE AS UNDER:- HOWEVER, IT IS MADE CLEAR THAT IF AT ANY STAGE, TH E ORDER OF THE TRIBUNAL ON QUANTUM ADDITION IS UPHELD BY TH E HONBLE COURT, THE DEPARTMENT IS FREE TO PROCEED IN ACCORDANCE WITH LAW ON PENALTY PROCEEDINGS. HOWEVER, THE LD. DR, SHRI VIVEK ANAND PERAPURNA, CONTENDED THAT THERE IS NO MISTAKE APPARENT FROM RE CORD IN THE ORDER OF THE TRIBUNAL, THE APPLICATION OF THE ASSES SEE MAY BE DISMISSED. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE TRIBUNAL, WHILE DELETING THE PENALTY U/S 271(1)(C) OF THE ACT , FOLLOWED THE DECISION FROM HONBLE BOMBAY HIGH COURT IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS (ITA NO.415 OF 2012), WHERE IN, THE HONBLE HIGH COURT DISMISSED THE APPEAL OF THE REVE NUE BY HOLDING THAT WHEN SUBSTANTIAL QUESTION OF LAW IS AD MITTED, IT BECOMES APPARENT THAT ADDITION IS CERTAINLY DEBATAB LE, THEREFORE, 3 M/S SCHRADER DUNCAN LIMITED . PENALTY U/S 271(1)(C) OF THE ACT IS NOT LEVIABLE. S IMILAR VIEW WAS TAKEN BY THE TRIBUNAL IN THE CASE OF ADVITA ESTATE DEVELOPMENT PVT. LTD. VS ITO (2013) (40 TAXMAN.COM 142). IT IS ALSO NOTED THAT THE INDORE BENCH OF THE TRIBUNAL IN YUGAL KISHORE J AJOO VS DCIT (ITA NO.272/IND/2012) TOOK A SIMILAR VIEW. IN VIEW OF THE AFORESAID DECISION, WE DELETE THE OBSERVATION MENTI ONED HEREINABOVE (IN PARA ONE IN ITALIC PORTION AS PLEAD ED BY THE ASSESSEE), THEREFORE, TO THIS EXTENT, THE ORDER OF THE TRIBUNAL IS RECTIFIED. THE REMAINING ORDER WILL REMAIN AS IT IS . THUS, TO THIS EXTENT THIS MISCELLANEOUS APPLICATION IS ALLOWED. FINALLY, THE MISCELLANEOUS APPLICATION IS ALLOWED T O THIS LIMITED EXTENT. THIS ORDER WAS PRONOUNCED ON 21/08/2015. SD/- SD/- (R.C.SHARMA) (JO GINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED - 21/08/2015 F{X~{T? P.S/. . . !'#$ %$' / COPY OF THE ORDER FORWARDED TO : 1. $% &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. * ( $% ) / THE CIT(A)- 4. * / CIT 5. +, - (. , $% $.# , / DR, ITAT, MUMBAI 6 . - 1 / GUARD FILE. / BY ORDER, ) +% ( //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI