ITO 5(1)(3), V. CASH FLOW INVESTMENT (I) P.LTD,

MA 319/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1705 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND RAJENDRA (AM) . . , , MA / NO.319/MUM/2013 ARISING OUT OF ./ ITA NO.4146/MUM/2012: / A.Y.: 2005-06 I.T.O. 5(1)(3), ROOM NO.569 & 525, 5 TH FLOOR, AAYAKER BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. M/S. CASH FLOW INVESTMENT (I) PVT. LTD. 132, CUMBALLA HILL ROAD, KEMPS CORNER, MUMBAI-400 036 (APP LICANT ) (RESPONDENT) [ ./ ./PAN/GIR NO. : AAACC2644M ' /: APPLICANT BY SHRI PITAMBAR DAS ) ' * / RESPONDENT BY SHRI VIMAL PUNMIYA * - / DATE OF HEARING : 21.02.2014 * - /DATE OF PRONOUNCEMENT : 21 .02.2014 / O R D E R PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION, THE DEPARTMENT HAS STATED THAT THE TRIBUNAL IN PARA 2 HAS GIVEN AN INCORRECT FINDINGS OF FACTS IN ITS ORDER DATED 11 TH JULY, 2013 PASSED IN ITA NO.4146/M/2012. HENCE THE SAID ORDER MAY BE RECALLED AS THERE IS A MISTAKE. 2. AT THE TIME OF HEARING, THE LD. DR SUBMITTED THA T ON THE DATE THE TRIBUNAL PASSED THE ORDER IN THE APPEAL DATED 11 TH JULY 2013, NO ASSESSMENT WAS PENDING BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAD ALR EADY PASSED THE ASSESSMENT ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL PASSED I N THE QUANTUM APPEAL. THEREFORE, THERE IS MISTAKE IN THE FINDINGS GIVEN IN THE ORDER OF THE TRIBUNAL. MA NO.319 /MUM/2013 2 3. ON THE OTHER HAND, LD. AR SUBMITTED THAT THERE I S NO MISTAKE IN THE ORDER OF THE TRIBUNAL. HE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL DATED 11 TH JULY 2013 IS IN RESPECT OF THE APPEAL OF PENALTY U/S. 271(1)(C) ARI SING FROM THE ORIGINAL ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WHICH WAS SET ASIDE BY THE TRIBUNAL. HENCE, THE TRIBUNAL HAS CORRECTLY STATED THAT WHEN THE QUANTUM HAD BEEN SET ASIDE AND THE MATTER WAS RESTORED TO ASSESSING OFFICER FOR FRESH CONSIDE RATION, THE LEVY OF PENALTY DOES NOT SURVIVE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. REPRES ENTATIVES OF BOTH THE PARTIES AND ORDER OF TRIBUNAL DATED 11 TH JULY 2013(SUPRA). WE OBSERVE THAT THE TRIBUNAL HAS STATED IN PARA 3 OF THE SAID ORDER DATED 11 TH JULY 2013 THAT THE ASSESSING OFFICER WILL BE AT LIBERTY TO CONSIDER TO INITIATE PENALTY PROCEEDI NGS AFTER PASSING FRESH ASSESSMENT AS PER LAW. IN VIEW OF ABOVE, WE AGREE WITH LD. AR THA T THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS THE PENALTY APPEAL ARISING OUT OF A N ASSESSMENT ORDER, WHICH WAS SET ASIDE BY THE TRIBUNAL AND THE MATTER WAS RESTORED T O THE ASSESSING OFFICER FOR FRESH CONSIDERATION, THE LEVY OF PENALTY PURSUANT TO THE SAID ASSESSMENT ORDER, DID NOT SURVIVE. IN VIEW OF ABOVE THERE IS NO MISTAKE IN TH E MATTER OF THE TRIBUNAL. HENCE, APPLICATION OF THE DEPARTMENT IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER C ONCLUSION OF HEARING IN THE PRESENCE OF THE REPRESENTATIVES OF THE PARTIES ON 21 ST FEBRUARY 2014. SD SD ( / RAJENDRA) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS 21 ST FEBRUARY 2014 . ./ A.K.PATEL , PS / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT /APPLICANT 2. ) ' / THE RESPONDENT. 3. 0 ( ) / THE CIT(A)- 4. 0 / CIT MA NO.319 /MUM/2013 3 5. )3 , - 3 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - 3 , /ITAT, MUMBAI