DCIT CEN CIR 8(1), MUMBAI V. SHAKTI PROEPRTY DEVELOPERS P. LTD, MUMBAI

MA 275/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4946 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 11-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND MS KAVITHA RAJAGOPAL, JM MA No. 275/mum/2021 (Arising in ITA No.1/Mum/2018 for Assessment Year 2013-14) The Dy. Commissioner of Income Tax, Central Circle 8(1), CPWD Building, M.K. road, New Marine Lines, Mumbai-400 020 Vs. Shakti Property Developers P. Ltd. 27/28 P Wing, Sharda Vihar Shakri Complex Charkop Kandivali (W) Mumbai-400 067 (Applicant) (Respondent) PAN No. AAECS8479E Assessee by : Shri Kirit Sanghvi, AR Revenue by : Shri R.A Dhyani, DR Date of hearing: 11.03.2022 Date of pronouncement : 23.03.2022 O R D E R PER PRASHANT MAHARISHI, AM: 01. This Miscellaneous Application is filed by the learned Dy. Commissioner of Income Tax, Central Circle 8(1), Mumbai for Assessment Year 2013-14 in ITA No. 01/Mum/2018 stating that there is a mistake apparent from record in the order of the co-ordinate Bench passed on 14.01.2021. 02. The Miscellaneous Application states that the co-ordinate Bench has granted relief to the assessee by reducing the income enhanced from ₹2,60,77,525/- to ₹55,64,424/-. By the same order, the penalty levied by the CIT (A) was also deleted for the reason that the learned Assessing Officer has been directed to estimate the profit at ₹55.64 lacs and therefore, the co-ordinate Bench held that the Page | 2 MA No.275/Mum/2021 Shakti Proeprty Developers P. Ltd. AY 13-14 order of Tribunal would certainly result into addition in the hands of the assessee. The learned Assessing Officer is free to initiate fresh penalty proceedings against the assessee based on his order, if found applicable. 03. The learned Assessing Officer is aggrieved that there was no direction to the Assessing Officer for working out and passing order for quantifying the addition on the basis of direction of the ITAT and under given circumstances there is no opportunity to the learned Assessing Officer for initiating the penalty proceedings since there is no proceedings akin to assessment proceedings being conducted by the learned Assessing Officer in the present circumstances. Therefore, the learned Assessing Officer filed Misc. Application with a prayer that the ITAT may kindly adjudicate on the issue of penalty based on true facts of the case and based on the basis on which the addition has been confirmed by the ITAT in the quantum proceedings or the ITAT may give any other alternative suitable direction that the Assessing Officer could follow in leading these proceedings to its logical conclusions. 04. The learned Departmental Representative submitted that the order passed by the ITAT setting aside the penalty back to the file of the learned Assessing Officer without any specific direction shows that the learned Assessing Officer now does not have any option to levy the penalty on the addition retained/ confirmed by ITAT of ₹55.64 lacs. Therefore, order of the ITAT suffers from mistake apparent from record. Page | 3 MA No.275/Mum/2021 Shakti Proeprty Developers P. Ltd. AY 13-14 05. The learned Authorised Representative vehemently submitted that the co-ordinate Bench has given directions to The ld AO to initiate the penalty proceedings afresh in view of the additions sustained by ITAT of ₹54,64,424/-. He submitted that the learned Assessing Officer has passed an order giving effect to the order of ITAT on 28.01.2021 however, has not initiated any penalty proceedings. Therefore, there is no error in the order of ITAT. 06. We have carefully considered the rival contentions and perused the orders of the co-ordinate Bench wherein the issue of penalty confirmed by the learned CIT (A) was also restored back to the file of the learned Assessing Officer to initiate, if applicable, when the profit of assessee is estimated. The fact shows that the original estimate of profit enhanced by the learned CIT(A) by ₹2,58,43,592/- was reduced to ₹55,64,424/- by order dated 19.02.2020 in ITA No.504/Mum/2017. The learned CIT(A) also levied the penalty of ₹77,53,077/- on such enhancement, which was set aside to the file of the learned Assessing Officer by ITAT vide order dated 19.02.2020 in ITA No. 01/Mum/2018. In the order of the ITAT has expressly granted liberty to the learned Assessing Officer for re- initiation of the penalty, if found leviable. Therefore, the ITAT has granted specific liberty to the learned Assessing Officer while passing the order of estimating the profit at ₹55.64 lacs for initiation of penalty proceedings based on his assessment order, if found applicable. Therefore, we find that when the income of the assessee is assessed by Page | 4 MA No.275/Mum/2021 Shakti Proeprty Developers P. Ltd. AY 13-14 incorporating the addition sustained by ITAT, the learned Assessing Officer was at liberty to initiate and levy penalty. Non-initiation or levy of penalty by the LD AO, despite liberty by ITAT, while passing appeal effect order does not make the order of ITAT erroneous. Now modifying the decision of ITAT will amount to review of the decision, which is no permissible u/s 254 of the Act. In view of this, we do not find any mistake apparent from the record in the order of the ITAT. 07. In the result, the MA filed by the AO is dismissed. Order pronounced in the open court on 23.03.2022. Sd/- Sd/- (KAVITHA RAJAGOPAL) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 23.03.2022 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai