MR SHEKHAR DADARKAR PROP. M/S S.D. CONSTRUCTION,MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX-31(3), MUMBAI

ITA 3343/MUM/2024

AI Insights

The case involves Mr. Shekhar Dadarkar, the proprietor of M/s. S.D. Construction, who appealed against the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961, amounting to Rs. 5,59,999. The penalty was related to the non-deduction of TDS on interest paid to NBFC, caretaking charges, and an exemption claimed under section 54. The original assessment determined a higher income than declared by the assessee, leading to penalties. However, subsequent assessments and appeals led to the replacement of the original assessment order, rendering the penalty order infructuous. The Tribunal dismissed the appeal, agreeing with the CIT(A)'s decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 35492 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHANGEPATIL PUSHKARAJ RAMESH DR
• Assessee Lawyers: ASHISH THAKUDESAI
• Keywords: Set aside; TDS; Non-deduction of tax
• Section: 143(3); 54; 271(1)(c)

Judgement Text

"| आयकर अपीलीय अिधकरण \fा यपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, HON’BLE VICE PRESIDENT & SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 3343/Mum/2024 Assessment Year: 2012-13 Mr. Shekhar Dadarkar Prop. M/s. S.D. Construction Office No. 1 Poorti Vihar Co-op Hsg. Soc. Ltd. Opp. Guru Nanak Park Near Siddharth Hospital New Shastri Nagar Goregaon (W) Mumbai - 400104 [PAN: ADAPD8694G] Vs Asstt. Commissioner of Income Tax – 31(3) अपीला थ\u0016/ (Appellant) \u0017\u0018 यथ\u0016/ (Respondent) Assessee by : Shri Ashish Thakudesai, C.A. Revenue by : Shri Bhangepatil Pushkaraj Ramesh – Sr. D/R सुनवाई की तारीख/Date of Hearing : 30/01/2025 घोषणा की तारीख /Date of Pronouncement: 30/01/2025 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM: This appeal by the assessee is preferred against the order dated 27/04/2024 by NFAC, Delhi, [hereinafter ‘the ld. CIT(A)’] pertaining to AY 2012-13. 2. The solitary grievance of the assessee is that the ld. CIT(A) erred in confirming the levy penalty u/s 271(1)(c) of the Act amounting to Rs. 5,59,999/-. 3. Briefly stated the facts of the case are that the assessee filed his return of income on 28/09/2012 declaring total income at Rs.28,05,809/-. The I.T.A. No. 3343/Mum/2024 2 assessment u/s 143(3) of the Act vide order dated 27/03/2018, was framed determining assessed income at Rs.1,93,01,317/-, after making the following additions:- 4. The assessee preferred appeal before the ld. CIT(A) disputing addition at clause i to iii above. The ld. CIT(A) confirmed the addition. The assessee preferred second appeal before the Tribunal. The Tribunal vide order dated 09/04/2018 set aside the issues to the AO on non-deduction of tax on interest paid to NBFC and non-deduction of tax on caretaking charges and dismissed the ground relating to deemed rent. Pursuant to the directions of the Tribunal, assessment was reframed u/s 143(3) r.w.s. 254 of the Act vide order dated 27/12/2019, repeating the same additions as made earlier. The ld. CIT(A) once again confirmed the addition on account of non-deduction of TDS on interest paid to NBFC and caretaking charges. The AO initiated penalty proceedings and dropped the penalty proceedings on account of addition on non-deduction of TDS on interest paid to NBFC and caretaking charges and deemed to rent and levied penalty on the exemption claimed u/s 54 of the Act, which was never agitated by the assessee. On these facts, the ld. CIT(A), decided as under:- I.T.A. No. 3343/Mum/2024 3 “Under the available facts, as the original assessment order dated 27.03.2015 has been replaced by the set aside assessment order passed u/s 143(3) rws 254. After this order the original assessment order dated 27.03.2015 does not exist in the eyes of law. Accordingly, the penalty order passed u/s 271(1)(c) in consequence to the original assessment order has also become infructuous. Accordingly, the appeal against the penalty order has also been rendered infructuous. Therefore, the appeal against penalty passed u/s 271(1)(c) dated 27.03.2018 has also been rendered infructuous. Accordingly, the appeal is dismissed for statistical purpose.” 5. Considering the facts in totality, we find no reason to interfere with the findings of the ld. CIT(A). 6. In the result, appeal of the assessee is dismissed. Order pronounced in the Court on 30th January, 2025 at Mumbai. Sd/- Sd/- (SAKTIJIT DEY) (NARENDRA KUMAR BILLAIYA) VICE-PRESIDENT ACCOUNTANT MEMBER Mumbai, Dated 30/01/2025 *SC SrPs *SC SrPs *SC SrPs *SC SrPs आदेश की \u0015ितिलिप अ\u001aेिषत /Copy of the Order forwarded to : 1. अपीलाथ\u001c / The Appellant I.T.A. No. 3343/Mum/2024 4 2. \u0015\u001dथ\u001c / The Respondent 3. संबंिधत आयकर आयु\" / Concerned Pr. CIT 4. आयकर आयु\" ) अपील ( / The CIT(A)- 5. िवभागीय \u0015ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 6. गाड& फाई/ Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Mumbai "