NOORJAHAN MUJAHID, V. ASST CIT 17(3),

MA 420/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2881 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2014
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Assessee Lawyers: NEELKANTHA KHANDELWAL
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMIT SHUKLA , J M M A NO. 420 / MUM/20 1 4 (ARISING OUT OF ITA NO . 6556 /MUM/20 1 2 ) ( ASSESSMENT YEAR S : 200 6 - 0 7 ) MS NOORJAHAN T. MUJAHID, PLOT NO.131, YOUTH QURESHI APTS., 1 ST FLOOR, CATER ROAD, OPP. JOGGERS PARK, BANDRA (W), MUMBAI VS. ACIT - 17(3), MUMBAI - 400 012 PAN NO. : A IAPM 6446 N APP LICANT ) .. RESPONDENT ) ASSESSEE BY : SHRI RAJIV KHANDELWAL & SHRI NEELKANTHA KHANDELWAL REVENUE BY : SHRI S ACHCHIDANAND DUBE DATE OF HEARING : 13 TH MARCH , 201 5 DATE OF PRONOUNCEMENT : 13 TH MARCH , 201 5 O R D E R PER R.C.SHARMA, AM : TH IS MISCELLANEOUS APPLICATION AROSE OUT OF ITA NO. 6556 /MUM/20 1 2 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THROUGH TH IS APPL ICATION , IT WAS SUBMITTED BY LD. AR THAT THE TRIBUNAL HAS PASSED THE ORDER DATED 29 - 10 - 2014, WHEREIN PENALTY IMPOSED BY AO WAS CONTESTED. IN THIS ORDER, THE TRIBUNAL HAVE DELETED THE PENALTY IN RESPECT OF SHARES OF KARUNA CABLES LTD., ADDITION MADE WITH RE SPECT TO THE SAME WAS DELETED BY TRIBUNAL VIDE ITS ORDER DATED 30 - 4 - 2014 IN ITA NO.960/M/2011. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE TRIBUNAL HAS NOT ADJUDICATED REGARDING PENALTY IMPOSED WITH REFERENCE TO THE SHORT TERM CAPITAL GAIN, WHICH WAS OFFER ED BY THE ASSESSEE DURING THE COURSE OF HEARING ITSELF BEFORE THE AO VIDE REVISED COMPUTATION OF INCOME. OUR ATTENTION WAS ALSO INVITED TO THE REVISED COMPUTATION FILED BEFORE THE AO ON 15 - 4 - 2008. AS PER LD. AR SINCE THE MA NO. 420 /20 1 4 2 CAPITAL GAIN HAVE ALREADY OFFERED D URING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF BEFORE ISSUING ANY NOTICE, WHICH HAVE ALREADY BEEN ADDED BY THE AO IN THE TOTAL INCOME WHILE PASSING THE ORDER, NO PENALTY SHOULD BE IMPOSED WITH RESPECT TO SUCH CAPITAL GAIN. 3. ON THE OTHER HAND, LD. DR S UBMITTED THAT THERE IS NO MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL WHICH COULD BE RECTIFIED/S.254(2) OF THE ACT. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 6556/M/2012 , DATED 29 - 10 - 2014. WE FOUND THAT PENALTY WAS IMPOSED WITH REFERENCE TO THE ADDITION MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN AMOUNTING TO RS.1,12,44,403/ - . OUT OF TOTAL GAIN SO OFFERED , THE AO HAS DISALLOWED CAPITAL GAIN OF RS.44,66,911/ - MADE UNDER SCRIPT NAMED AS KARUN A CABLES LTD. SINCE THIS ADDITION WAS DELETED BY TRIBUNAL VIDE ITS ORDER DATED 13 - 4 - 2014, THEREFORE, PENALTY IMPOSED WITH RESPECT TO THIS ADDITION WAS ALSO DELETED BY US IN OUR ORDER DATED 29 - 10 - 2014. WITH RESPECT TO THE BALANCE PENALTY, THE TRIBUNAL HAVE NOT ADJUDICATED THE MATTER WHICH AMOUNTS TO A MISTAKE APPARENT FROM RECORD. CONSIDERING ASSESSEES CONTENTION THAT REVISED COMPUTATION HAS ALREADY BEEN FILED BEFORE THE AO ON 15 - 4 - 2008, MUCH BEFORE PASSING OF ORDER BY THE AO, THE SAME IS REQUIRED TO BE CON SIDERED AS DISCLOSED BY THE ASSESSEE. HOWEVER, THIS FACT APPEARS TO BE NOT CONSIDERED BY AO WHILE LEVYING PENALTY U/S. 271(1)(C). WE FOUND THAT CIT(A) HAS ALSO PASSED EX - PARTE ORDER AND THIS FACT WAS NOT CONSIDERED EVEN BY THE CIT(A). THEREFORE, MA NO. 420 /20 1 4 3 IN THE INTE REST OF JUSTICE AND FAIR - PLAY, TO THE EXTENT OF BALANCE OF PENALTY, WE RESTORE THE MATTER BACK TO THE FILE OF CIT(A) FOR DECIDING AFRESH AFTER CONSIDERING ASSESSEES CONTENTION REGARDING REVISED COMPUTATION HAVING BEEN FILED WITH THE AO ON 15 - 4 - 2008 OFFERI NG THE REVISED SHORT TERM CAPITAL GAINS BEFORE COMPLETION OF ASSESSMENT. WE DIRECT ACCORDINGLY. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN PART . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 - 03 - 2015 . SD/ - ( AMIT SHUKLA ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 3 /0 3 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TR UE COPY//