Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 2666 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
07-06-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
E
Assessment Year
2008-2009
Appeal Filed On
12-04-2019
Judgement Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.272/MUM/2019 [ARISING OUT OF I.T.A. NO.1409/MUM/2016] ( / ASSESSMENT YEAR: 2008-09) M/S. ALLWEILER INDIA PRIVATE LIMITED ( FORMERLY KNOWN AS TUSHACO PUMPS PVT.LTD.) A-601, RAHEJA PLAZA, LBS MARG GHATKOPAR (W), MUMBAI-400 086. / VS. D CIT - CENTRAL CIRCLE - 14(1)(1) ROOM NO.475, 4 TH FLOOR AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ./ ./ PAN/GIR NO. AABCT-7703-K ( /APPELLANT ) : ( / RESPONDENT ) & MISCELLANEOUS APPLICATION NO.273/MUM/2019 [ARISING OUT OF I.T.A. NO.1410/MUM/2016] ( / ASSESSMENT YEAR: 2010-11) M/S. ALLWEILER INDIA PRIVATE LIMITED ( FORMERLY KNOWN AS TUSHACO PUMPS PVT.LTD.) A-601, RAHEJA PLAZA, LBS MARG GHATKOPAR (W), MUMBAI-400 086. / VS. D CIT - CENTRAL CIRCLE - 14(1)(1) ROOM NO.475, 4 TH FLOOR AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ./ ./ PAN/GIR NO. AABCT-7703-K ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI DEEPAK TIKEKAR-LD.AR REVE NUE BY : SHRI CHAITANYA ANJARIA-LD.DR !'#$ / DATE OF HEARING : 07/06/2019 %& !'#$ / DATE OF PRONOUNCEMENT : 07/06/2019 2 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THESE APPLICATIONS, THE ASSESSEE SEEKS RECALL OF COMMON ORDER OF TRIBUNAL ITA NOS. 1409 & 1410/MUM/2016 DAT ED 11/12/2018, PASSED IN REVENUES APPEALS, IN CASE OF CAPTIONED A SSESSEE FOR ASSESSMENT YEARS 2008-09 & 2010-11. 2. DRAWING OUR ATTENTION TO THE APPLICATIONS, LD. A UTHORIZED REPRESENTATIVE [DR], SUBMITTED THAT THE ISSUE INVOL VED IN AY 2008-09 (ITA NO.1409/MUM/2016) WAS LEVY OF PENALTY U/S 271(1)(C) WHICH HAS BEEN RESTORED BACK TO THE FILE OF LD. ASSESSING OFFICER FOR FRESH CONSIDERATION IN VIEW OF THE FACT THAT QUANTUM ADDITION, AGAINST WHI CH THE PENALTY WAS LEVIED, WAS ALSO RESTORED BACK BY THE TRIBUNAL VIDE ITA NO. 1264/MUM/2012 ORDER DATED 25/11/2016. THE LD. AR DREW ATTENTION TO THE FACT THAT THE QUANTUM ASSESSMENT ORDER U/S 143(3) R.W.S. 254 OF THE ACT, WAS ALREADY PASSED BY LD. AO ON 31/12/2017 WHEREIN SAME DISALLOWANCE HAS BEEN MADE AND FRESH PENALTY PROCEEDINGS U/S 271(1)(C) HAS BEEN IN ITIATED. IN THE AFORESAID BACKGROUND, LD. AR SUBMITTED THAT SINCE ORIGINAL AS SESSMENT ORDER PASSED U/S 143(3) ON 18/11/2010 WAS SET ASIDE, THE CONSEQU ENTIAL PENALTY PROCEEDINGS WOULD ALSO NOT SURVIVE. THEREFORE, INST EAD OF RESTORING BACK THE PENALTY, THE SAME WAS TO BE DELETED. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT TRIBUNA L, VIDE ORDER DATED 25/11/2016 ONLY SET ASIDE THE FINDINGS OF LD. CIT(A ) ON THE ISSUE OF DISALLOWANCE OF COMMISSION EXPENSES AND DIRECTED LD . AO TO DECIDE THE MATTER AFRESH. BRIEF FACTS AS EMANATES FROM RECORD ARE THAT THE ASSESSEE 3 HAS SUFFERED QUANTUM ADDITION ON ACCOUNT OF COMMISS ION FOR RS.147.45 LACS WHICH WAS CONTESTED BY ASSESSEE BEFORE THE TRI BUNAL VIDE ITA NO.1264/MUM/2012 WHEREIN THE MATTER WAS RESTORED BA CK TO THE FILE OF LD. AO FOR FRESH CONSIDERATION. HOWEVER, THE PENALTY LE VIED BY LD. AO U/S 271(1)(C) WAS DELETED BY LD. CIT(A) WHICH WAS CONTE STED BY THE REVENUE VIDE ITA NO. 1409/MUM/2016 WHEREIN THE SAME WAS ALS O RESTORED BACK KEEPING IN VIEW THE FACT THAT QUANTUM ADDITIONS WER E ALSO RESTORED BACK BY THE TRIBUNAL. WE DO NOT FIND ANY INFIRMITY IN THE S AME AND THE DECISION WAS QUITE LOGICAL ONE BECAUSE THE PENALTY APPEAL WAS FI LED BY THE REVENUE AND NOT BY THE ASSESSEE SINCE THE PENALTY WAS ALREADY D ELETED BY LD.CIT(A). THEREFORE, THE SAID ORDER, IN OUR OPINION, WOULD RE QUIRE NO INTERFERENCE ON OUR PART. 4. IT HAS BEEN BROUGHT TO THE NOTICE THAT PURSUANT TO THE DIRECTIONS OF TRIBUNAL IN ITA NO.1264/MUM/2012, THE QUANTUM ORDER HAS BEEN PASSED BY LD. AO U/S 143(3) R.W.S. 254 ON 31/12/2017 WHEREIN SAME ADDITION HAS BEEN REPEATED AND FRESH PENALTY PROCEEDINGS HAS BEE N INITIATED. THE SAME IS ALSO IN ORDER SINCE THE EARLIER PENALTY ORDER WO ULD NOT SURVIVE AND THE ONLY PENALTY WHICH SURVIVE AGAINST THE ASSESSEE WOU LD BE PURSUANT TO THIS ORDER ONLY. 5. THE MISCELLANEOUS APPLICATION FOR AY 2008-09 STA ND DISMISSED. 6. SO FAR AS APPLICATION FOR AY 2010-11 IS CONCERNE D, WE FIND THAT THE REVENUE AGITATED THAT RELIEF GRANTED BY FITS APPELL ATE AUTHORITY QUA COMMISSION EXPENDITURE. THE SAME WAS ALSO RESTORED BACK TO THE FILE OF LD. AO FOR RE-ADJUDICATION. THE PLEA OF LD. AR IS THAT RENDERING OF SERVICE HAS NOT BEEN DOUBTED BY LD. AO AND SECONDLY, SIMILAR IS SUE AGITATED BY 4 REVENUE FOR AYS 2012-13 & 2013-14 HAS BEEN DISMISSE D BY ITAT VIDE ITA NOS.7364-65/M/2017 ORDER DATED 28/02/2019. 7. UPON CAREFUL CONSIDERATION, WE FIND THAT NO PREJ UDICE HAS BEEN CAUSED TO THE ASSESSEE BY WAY OF RESTORATION OF ISSUE TO T HE FILE OF LD. AO AND THE ASSESSEE IS FREE TO SUBSTANTIATE HIS STAND, IN ANY MANNER. SECONDLY, THE CITED ORDER OF THE TRIBUNAL IS SUBSEQUENT TO THE OR DER UNDER QUESTION. THEREFORE, FINDING NO MISTAKE APPARENT FROM RECORD, THE APPLICATION STANDS DISMISSED. 8. RESULTANTLY, BOTH THE APPLICATIONS STAND DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 07.06.2019 SR.PS:- JAISY VARGHESE 5 / 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 FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
