J.R. DIAMONDS P. LTD, MUMBAI v. CIT (A)_8, MUMBAI

ITA 1033/MUM/2011 | misc
Pronouncement Date: 12-07-2013 | Result: Allowed

Appeal Details

RSA Number 103319914 RSA 2011
Assessee PAN AAACJ1241R
Bench Mumbai
Appeal Number ITA 1033/MUM/2011
Duration Of Justice 2 year(s) 5 month(s) 7 day(s)
Appellant J.R. DIAMONDS P. LTD, MUMBAI
Respondent CIT (A)_8, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 12-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 12-07-2013
Date Of Final Hearing 08-07-2013
Next Hearing Date 08-07-2013
Assessment Year misc
Appeal Filed On 04-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH MUMBAI .. !'# $ $ $ $ ! % & !'# !' BEFORE SHRI P.M. JAGTAP AM AND SHRI SANJAY GARG J M !./ I.T.A. NO.1033 /MUM/2011 ( &) % $*% &) % $*% &) % $*% &) % $*% / / / / ASSESSMENT YEAR : 1985-86) M/S J.R. DIAMONDS PVT. LTD. SU-RAJ HOUSE 73-C CROSS ROAD MAROL MIDC ANDHERI (E) MUMBAI 400 093. ) ) ) ) / VS. ASSTT. COMMISSIONER OF INCOME-TAX (INV. CIRCLE 2(1) BOMBAY. #+ !./ PAN : AAACJ 1241 R ( + / // / APPELLANT ) .. ( -.+ / RESPONDENT ) + / 0 ! / APPELLANT BY : SHRI DILIP J. THAKKAR & SHRI R.P. SHAH -.+ / 0 ! / RESPONDENT BY : SHRI O.P. SINGH !)$ / / // / DATE OF HEARING : 08-07-2013 12* / / DATE OF PRONOUNCEMENT : 12-7-2013 '3 / O R D E R PER P.M. JAGTAP A.M . : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A) -8 MUMBAI DATED 19-11-2010 WHEREBY HE CONFIRMED THE PENALTY OF RS. 4 95 325/- LEVIED BY THE A.O. U/S 27 1(1)(C) OF THE INCOME TAX ACT 1961. ITA 1033/MUM /2011 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSER VED THAT THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT IN THIS CASE I N RESPECT OF ADDITION OF RS. 7 86 071/- MADE TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDER VALUATION WAS CHALLENGED BY THE ASSESSEE IN THE APP EAL FILED BEFORE THE LD. CIT(A). THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY IMPOSED BY THE A.O. FOR THE FOLLOWING REASO NS GIVEN IN HIS IMPUGNED ORDER:- THE APPELLANT AS PER WRITTEN SUBMISSION DATED 12.11 .2010 HAS PLACING RELIANCE UPON THE ASSESSMENT ORDER DATED 24 .03.1998 FORM NO.35 WITH GROUNDS OF APPEAL AND STATEMENT OF FACTS ITAT ORDER IN ITA NO.9070 AND 71 FOR 1985-86 (QUANTUM AP PEAL DATED 29.05.1996) ORDER GIVING EFFECT TO ITATS ORDER DA TED 26.08.1996 PENALTY ORDER U/S 271(1)(C ) CIT(A)S ORDER DATED 15.09.1994 AND ITAT ORDER DATED 04.12.2002 IN PENALTY CASE HAS CON TENDED THAT FROM THE ABOVE IT WAS CLEAR THAT THE QUANTUM APPEAL HAD BEEN DECIDED IN FAVOUR OF COMPANY AND HENCE PENALTY DOE S NOT SURVIVE. HOWEVER ON GOING THROUGH THE DOCUMENTS/O RDERS MENTIONED BY THE APPELLANT IN ITS LETTER DATED 12.1 1.2010. I DO NOT FIND ANY DECISION IN FAVOUR OF THE ASSESSEE COMPANY REGARDING ITS QUANTUM APPEAL. FROM THE ORDER OF THE HONBLE ITAT DATED 29.05.1996 IN ITA NO.9070 & 71 FOR A.Y. 1985-86 I FIND THAT THE MATTER HAD BEEN RESTORED TO THE A.O. THUS FROM TH E DOCUMENTS RELIED UPON BY THE APPELLANT I FIND THAT IN NONE O F THESE ORDERS THE QUANTUM APPEAL HAS BEEN DECIDED IN FAVOUR OF TH E COMPANY. I THEREFORE DO NOT FIND ANY JUSTIFICATION IN THE APP ELLANTS CONTENTION THAT THE PENALTY DOES NOT SURVIVE. ACCORDINGLY TH E PENALTY OF RS.4 95 325/- LEVIED BY THE A.O. U/S 271(1)(C ) IS CONFIRMED. THE APPEAL IS NOT ALLOWED. IT IS MANIFEST FROM THE ABOVE THAT THE ISSUE RELATI NG TO THE ADDITION MADE ON ACCOUNT OF UNDER VALUATION OF STOCK HAD BEEN RESTOR ED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS AND THIS FACTUAL POSITION BROUG HT BY THE ASSESSEE TO THE NOTICE OF THE LD. CIT(A) WHICH IS ALSO EVIDENT FRO M THE COPY OF THE RELEVANT ORDER OF THE TRIBUNAL PLACED ON RECORD HAS NOT BEE N DISPUTED BY THE LD. D.R. IN OUR OPINION WHEN THE ISSUE RELATING TO THE CORR ESPONDING ADDITION WAS RESTORED BY THE TRIBUNAL TO THE FILE OF THE A.O. IN THE QUANTUM PROCEEDINGS THE VERY BASIS OF THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT DID NOT SURVIVE ITA 1033/MUM /2011 3 AND THE LD. CIT(A) OUGHT TO HAVE CANCELLED THE SAID PENALTY GIVING LIBERTY TO THE A.O. TO INITIATE THE PENALTY PROCEEDINGS AFRESH DEPENDING UPON THE OUTCOME OF THE SET ASIDE PROCEEDINGS IN ACCORDANCE WITH LAW. WE THEREFORE CANCEL THE PENALTY IMPOSED BY THE A.O. AND CONFIRME D BY THE LD. CIT(A) WITH A LIBERTY TO THE A.O. TO INITIATE THE PENALTY PROCEED INGS AFRESH DEPENDING ON THE OUTCOME OF THE SET ASIDE QUANTUM PROCEEDINGS IN ACC ORDANCE WITH LAW. 3. IN THE RESULT THE ASSESSEES APPEAL STANDS ALL OWED. 4 5 &) %4 / 4 / 67 ORDER PRONOUNCED IN THE OPEN COURT ON 12-7-2013. . '3 / 12* 8')5 12-7-2013 2 / SD/- SD/- (SANJAY GARG) (P.M. JAGTAP ) & !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 8') DATED 12-7-2013 $.&).!./ RK SR. PS '3 / -&9: ;:* '3 / -&9: ;:* '3 / -&9: ;:* '3 / -&9: ;:*/ COPY OF THE ORDER FORWARDED TO : 1. + / THE APPELLANT 2. -.+ / THE RESPONDENT. 3. < () / THE CIT(A)- 8 MUMBAI 4. < / CIT 4 MUMBAI 5. :$? -&&) / DR ITAT MUMBAI I BENCH 6. @% A / GUARD FILE. '3)! '3)! '3)! '3)! / BY ORDER !.: -& //TRUE COPY// B B B B/ // /!6 !6 !6 !6 ( DY./ASSTT. REGISTRAR) / ITAT MUMBAI