DCIT 10(1), MUMBAI V. MAHARASHTRA STATE POWER GENERATION CO.LTD, MUMBAI

MA 730/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4610 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 13-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUNKUMAR
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER & SHRI M. BALAGANESH, HON'BLE ACCOUNTANT MEMBER M .A. NO. 730 /MUM/201 8 [ ARISING OUT OF ITA NO. 4720 /MUM/201 2 (A.Y: 2006 - 07) ] DCIT 10(1) [NOW THE DY. COMMISSIONER OF INCOME - TAX 14(2)(1)] AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 V. M/S. MAHARASHTRA STATE POWER GENERATION CO. LTD. PLOT NO. G - 19, PRAKASH GHAD ANANT KANEKAR MARG, STATION ROAD, BANDR A (E), MUMBAI 400 051 PAN: AAECM 2935 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NIRAJ SHETH DEPARTMENT BY : SHRI CHAUDHARY ARUNKUMAR DATE OF HEARING : 15.02.2019 DATE OF PRONOUNCEMENT : 09 . 05 .2019 O R D E R PER C. N. PRASAD (JM) 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE SEEKING THE TRIBUNAL TO RECTIFY THE MISTAKE APPARENT ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL ITA.NO. 4720/MUM/2012 DATED 2 7 .06.2018. 2. IN THE MISCELLANEOUS APPLICATION THE REVENUE STATES THAT THE TRIBUNAL IN ITS ORDER DATED 27.06.2018 HELD THAT THE FIRST APPELLATE AUTHORITY DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER AND THIS ORDER OF THE FIRST APPELLATE AUTHORITY (FAA) WAS SUSTAINED BY THE TRIBUNAL 2 M.A. NO. 730/MUM/2018 M/S. MAHARASHTRA STATE POWER GENERATION CO. LTD. AND THEREFORE, PENALTY LEVIED U/S. 271(1)(C) OF THE ACT WOULD NOT SERVE. THE RE VENUE IN THE MISCELLANEOUS APPLICATION STATED THAT THIS FINDING OF THE TRIBUNAL IS FACTUALLY INCORRECT , AS THE FIRST APPELLATE AUTHORITY SUSTAINED THE ADDITION/DISALLOWANCE OF . 1631.85 LAKHS ON ACCOUNT OF COAL COST FREIGHT AND THE ASSESSEE HAD NOT TAKEN ANY GROUND IN ITS APPEAL BEFOR E THE TRIBUNAL IN THE QUANTUM PROCEEDINGS AND THEREFORE DELETING THE PENALTY U/S. 271(1)(C) OF THE ACT ON THIS ADDITION , HOLDING THAT THE FIRST APPELLATE AUTHORITY DELETED ALL THE ADDITIONS IS FACTUALLY INCORRECT . THEREFORE, I T IS STATED THAT THERE IS MISTAKE APPARENT FROM RECORD WHICH H A S CREPT IN THE ORDER PASSED BY THE TRIBUNAL IN ITA.NO. 4720/ MUM/ 2012 DATED 27.06.2 018 IN DELETING THE PENALTY ON THE ADDITION OF .1631.85 LAKHS WHICH WAS SUSTAINED BY THE LD.CIT(A), NEEDS RECT IFICATION. 3. LD. AR FAIRLY AGREES WITH T HE CONTENTIONS OF THE REVENUE. 4. ON HEARING BOTH THE SIDES AND PERUSING THE ORDER OF THE TRIBUNAL, WE FIND THAT THE CONTENTIONS OF THE REVENUE ARE CORRECT AND THE TRIBUNAL PROCEEDED TO DELETE THE PENALTY ON THE GROUND TH AT THE FIRST APPELLATE AUTHORITY HAD DELETED ALL THE ADDITIONS AND THE TRIBUNAL SUSTAINED THIS ORDER OF THE FIRST APPELLATE AUTHORITY. HOWEVER, IT IS A FACT THAT THE FIRST APPELLATE AUTHORITY HAD SUSTAINED THE ADDITION/DISALLOWANCE IN RESPECT OF THE ADDITION MADE ON ACCOUNT OF COAL COST FREIGHT AMOUNT ING TO .1631.85 LAKHS AND THE ASSESSEE HAD NOT FILED ANY APPEAL AGAINST CONFIRMING SUCH 3 M.A. NO. 730/MUM/2018 M/S. MAHARASHTRA STATE POWER GENERATION CO. LTD. ADDITION/DISALLOWANCE BY THE FIRST APPELLATE AUTHORITY. WE NOTICE THAT THE TRIBUNAL BY OVERSIGHT OMITTED TO CONSID ER THIS FACTUAL POSITION AND THEREFORE A MISTAKE IS CREPT IN THE ORDER PASSED BY THE TRIBUNAL IN ITA.NO. 4720 / MUM/20 12 DATED 27.06.2018 WHICH IS APPARENT ON THE RECORD AND NEEDS RECTIFICATION. IN THE CIRCUMSTANCES , WE RECALL THE ORDER PASSED BY THE TRIBUN AL TO HEAR THE PARTIES IN RESPECT OF THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT ON THE ADDITION SUSTAINED BY THE LD. FIRST APPELLATE AUTHORITY REGARDING COAL COST FREIGHT AS THE PENALTY S URVIVED ONLY IN RESPECT OF THIS ADDITION. IN RESPECT OF OTHER ADDI TIONS, NO PENALTY IS SURVIVED AS THE QUANTUM ADDITIONS WERE DELETED BY THE FIRST APPELLATE AUTHORITY AND WAS CONFIRMED BY THE ITAT. THUS , WE RE CALL OUR ORDER DATED 27.06.2018 IN ITA.NO. 4720/MUM/2012 ONLY TO ADJUDICATE THE LEVIABILITY OF PENALTY U/S. 271(1)(C) OF THE ACT ON THE ADDITION OF COAL COST FREIGHT SUSTAINED BY THE FIRST APPELLATE AUTHORITY. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR HEARING IN D UE COURSE AFTER ISSU ING NOTICES TO THE PARTIES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 09 TH MAY , 2019 SD/ - SD/ - ( M. BALAGANESH ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 09 / 05/2019 GIRIDHAR, SR.PS 4 M.A. NO. 730/MUM/2018 M/S. MAHARASHTRA STATE POWER GENERATION CO. LTD. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM