ITO, WARD-3(4), Thane V. M/S VISHWAKARMA & COMPANY, Thane

MA 345/MUM/2022

AI Insights

The case involves a miscellaneous application by the Pr. Commissioner of Income Tax-1 against M/s Vishwakarma & Company, concerning a penalty of Rs. 46,598 under section 271(1)(c) of the Income Tax Act for the assessment year 2010-11. The initial appeal by the revenue was dismissed by the ITAT due to the tax effect being below the monetary limit set by CBDT Circular No. 3/2018. The revenue's subsequent miscellaneous application argued that the case fell under an exception in the circular due to information from external sources. However, the ITAT dismissed this application as it was filed beyond the permissible time limit, and also because the exception cited was applicable only to quantum proceedings, not penalty proceedings.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130288 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-12-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 23-11-2022
• Other Referred Cases: Bharat Petroleum Corporation Limited Vs. ITAT, ITO Vs. Evergreen Water Technology Pvt. Ltd, DCIT vs. M/s Aluvind Architectural Pvt. Ltd
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 271(1)(c); 254(2)

Judgement Text

P a g e | 1 M.A. No. 345/Mum/2022 Pr. CIT-1 Vs. M/s Vishwakarma & Company IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. No.345/Mum/2022 (Arising out of ITA No.4562/Mum/2019) (A.Y. 2010-11) Pr. Commissioner of Income Tax-1, 6 th Floor, Ashar IT Park, ‘A’ Wing, Road No. 16Z, Wagle Industrial Estate, Thane (W) – 400604 Vs. M/s Vishwakarma & Company, Plot No. C-8, Road No. 15, Wagle Industrial Estate, Near ESIC Hospital Thane (W) – 400604 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AAEFV2323K Appellant .. Respondent Appellant by : Ms. Vranda U. Matkar Respondent by : None Date of Hearing 23.12.2022 Date of Pronouncement 23.01.2023 आदेश / O R D E R Per Amarjit Singh (AM): The Miscellaneous Application No. 345/Mum/2022 is directed against the order of the ITAT for assessment year 2010-11 passed on 27.04.2022. 2. Vide ITAT order no. 4562/Mum/2019 the appeal of the revenue was dismissed stating that tax effect involved of Rs.46,598/- was below the monetary limit of Rs.50 lac in accordance with circular No. 3/2018 dated 11.07.2018. In this regard in the Miscellaneous Application it is submitted that the case of the revenue was covered by the exception 10(e) as given in the amendment dated 20.08.2018 to para 10 of the CBDT Circular no. 3 of 2018 dated 11.07.2017 that where information is based on information received from external sources. P a g e | 2 M.A. No. 345/Mum/2022 Pr. CIT-1 Vs. M/s Vishwakarma & Company 3. Heard the ld. D.R and perused the material on record. After perusal of the material on record it is noticed that the issue in the appeal of the Revenue was pertained to deleting of penalty of Rs.46,598/- levied u/s 271(1)(c) of the Act. 4. The ld. CIT(A) has deleted the penalty levied of Rs.46,598/- u/s 271(1)(c) of the Act. In this regard the ITAT Bombay vide ITA No. 5483/Mum/2019 in the case of ITO Vs. Evergreen Water Technology Pvt. Ltd, dated 23.09.2022 and in the case of DCIT vs. M/s Aluvind Architectural Pvt. Ltd. Vide ITA No. 6053/Mum/2019 dated 19.04.2021 held that the exception provided vide para 10(e) of the Circular 17/2019 dated 08.08.2019 is applicable only in respect of quantum proceedings and the same cannot be made applicable to the penalty proceedings. It is also held that penalty and quantum assessment proceedings are distinct and separate, therefore, in the aforesaid cases the ITAT has dismissed the appeal of the revenue on similar fact and identical issue. 3. Apart from above it is also noticed that the miscellaneous application filed by the assesse is barred by limitation. Since, the impugned order of the ITAT was passed on 27.04.2022 and after the amendment in Sec. 254(4) w.e.f 01.06.2016 the mistake in the order of the Tribunal can be rectified within the period of 6 months, therefore the miscellaneous application is required to be filed before 31.10.2022, however, the Revenue has filed the Miscellaneous Application on 24.11.2022 therefore, the miscellaneous application filed by the revenue is barred by limitation u/s 254(2) of the Act as the same is filed beyond the due date of six months from the order sought to be rectified. The Hon’ble Bombay High Court in the case of Bharat Petroleum Corporation Limited Vs. ITAT (2014) 42 taxmann.com 25 (Bombay) wherein held that the Miscellaneous petition filed beyond the period of P a g e | 3 M.A. No. 345/Mum/2022 Pr. CIT-1 Vs. M/s Vishwakarma & Company limitation as provided u/s 252(2) is not maintainable, therefore, the miscellaneous application filed by the revenue is dismissed. 4. In the result, the miscellaneous application filed by the revenue is dismissed. Order pronounced in the open court on 23.01.2023 Sd/- Sd/- (Sandeep Singh Karhail) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 23.01.2023 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.