ABPS INFRASTRUCTURE ADVISORY PVT. LTD., Mumbai v. ITO 9(1)(1), Mumbai

ITA 1887/MUM/2019 | 2012-2013
Pronouncement Date: 06-11-2019 | Result: Allowed

Appeal Details

RSA Number 188719914 RSA 2019
Assessee PAN AAFCA9008A
Bench Mumbai
Appeal Number ITA 1887/MUM/2019
Duration Of Justice 7 month(s) 4 day(s)
Appellant ABPS INFRASTRUCTURE ADVISORY PVT. LTD., Mumbai
Respondent ITO 9(1)(1), Mumbai
Appeal Type Income Tax Appeal
Pronouncement Date 06-11-2019
Appeal Filed By Assessee
Tags 1887
Order Result Allowed
Bench Allotted A
Tribunal Order Date 06-11-2019
Assessment Year 2012-2013
Appeal Filed On 01-04-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI BEFORE SHRI MAHAVIR PRASAD (JM) AND SHRI S. RIFAUR RAHMAN (AM) ITA NO. 1887/MUM/2019 ASSESSMENT YEAR: 2012-13 ABPS INFRASTRUCTURE ADVISORY PVT. LTD. 301 TOWN CENTRE II ANDHERI- KURLA ROAD ANDHERI (EAST.) MUMBAI- 400059 PAN: AAF CA9 008 A VS. ITO 9(1)(1) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAMKRISHNA LINGSUR REVENUE BY : SHRI S. MICHAEL JERALD (DR) DATE OF HEARING: 04 /11 /201 9 DATE OF PRONOUNCEMENT: 06/11/2019 O R D E R PER MAHAVIR PRASAD JM THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-16/IT-10856/ITO-9(1)(1)/2016-17 DATED 10.03.2017 ARISING OUT OF PENALTY ORDER PASSED BY THE ITO-9(1)(1) MUMBAI AND ASSESSMENT ORDER DATED 24.02.2015. 2. FACTS OF THE CASE ARE THAT ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF PROVIDING CONSULTANCY AND ADVISORY SERVICES TO GOVERNMENT AUTHORITIES REGULATORY BODIES PRIVATE AND PUBLIC SECTOR. AND ASSESSEE HAS TAKEN SOLELY GROUND THAT COMMISSIONER OF INCOME TAX-16 MUMBAI ERRED IN CONFIRMING THE PENALTY OF RS. 13 78 433 :- 2 ITA NO. 1887/ MUM/2019 ASSESSMENT YEAR: 2012-13 1. THE COMMISSIONER OF INCOME TAX (APPEALS)-16 MUMBAI ERRED IN CONFIRMING THE PENALTY OF RS. 13 78 433/-. 2. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR TO DELETE ALL OR ANY OF THE ABOVE GROUNDS IN APPEAL. 3. DURING THE ASSESSMENT PROCEEDING FROM THE BALANCE SHEET IT WAS NOTICED THAT ASSESSEE HAS SHOWN SERVICE TAX PAYABLE OF RS. 8 51 885/- AND PF OF RS. 2 75 426/- AS ON 31.03.2012 AND FROM THE TAX AUDIT REPORT FILED BY THE ASSESSEE IT WAS SEEN THAT ASSESSEE HAS PAID PERFORMANCE INCENTIVE TO THE PERSONS AMOUNTING TO RS. 36 00 000/- COVERED UNDER SECTION 40A(2)(B) OF THE INCOME TACT 1961 OTHER THAN SALARY. WHEN LD. AO ASKED FOR THE REASON FOR SAID PAYMENT ASSESSEE STATED THAT SAID PAYMENT WAS NEITHER BONUS OR COMMISSION PAYABLE TO DIRECTOR AND WAS IN ACCORDANCE WITH THE TERMS OF EMPLOYMENT BUT LD. AO WAS NOT AGREE WITH THE CONTENTION OF THE ASSESSEE AND LEVIED PENALTY OF RS. 13 78 433/-. 4. THEREAFTER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO REVISITED AND VARIOUS SUBMISSION MADE ON BEHALF OF THE ASSESSEE BUT HOWEVER FOUND NO MERIT THEREIN AND CONFIRMED THE ACTION OF THE LD. AO. NOW ASSESSEE COME BEFORE US AND FILED SECOND STATUTORY APPEAL BEFORE US. NOW QUESTION BEFORE US IF ANY PAYMENT CLAIMS TO HAVE BEEN MADE TO THE DIRECTORS OR STATUTORY PAYMENT AND THAT CLAIM WAS NOT ACCEPTABLE TO THE AO? WHETHER IN SUCH CASE PENALTY CAN BE IMPOSED OR NOT? 5. WE HAVE GONE THROUGH THE IMPUGNED ORDER AND HEARD BOTH THE PARTIES IN OUR OPINION PENALTY CAN BE IMPOSED ON TWO COUNTS IF ASSESSEE HAS GIVEN INACCURATE PARTICULAR OR HIS CONCEALED INCOME FROM THE DEPARTMENT ONLY THEN PENALTY CAN BE LEVIED AND PENALTY PROCEEDING DEPEND UPON THE FACTS AND CIRCUMSTANCES OF THE EACH CASE. IF BOTH OR ANY ONE LIMB IS MISSING THEN PENALTY CANNOT BE IMPOSED. IN SOME CASES IF ASSESSEE MERELY BECAUSE AGREE TO THE ADDITION AND THE ASSESSMENT ORDER WAS PASSED ON THE BASIS OF SUCH ADDITION AND WHEN ASSESSEE HAVE PAID A TAX AND THE INTEREST THEREFORE IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SHOW THE CONCEALMENT OF INCOME IT 3 ITA NO. 1887/ MUM/2019 ASSESSMENT YEAR: 2012-13 CANNOT BE INFERRED THAT ADDITION WAS ON ACCOUNT OF CONCEALMENT. MOREOVER THE ASSESSEE HAD OFFERED AN EXPLANATION AND THAT EXPLANATION WAS NOT FOUND TO BE FALSE ON THE CONTRARY IT WAS HELD TO BE BONA FIDE. 6. AS WE CAN SEE ASSESSEE HAS MADE CERTAIN CLAIMS WHICH WERE NOT ACCEPTABLE TO THE LOWER AUTHORITIES IN THAT CASE PENALTY CANNOT BE IMPOSED. IN OUR CONSIDERED OPINION IN SUCH CASE WHERE CLAIM OF THE ASSESSEE IS OF DEBATABLE ISSUE ON SUCH ADDITION PENALTY CANNOT BE IMPOSED. THEREFORE WE DELETE THE PENALTY AND ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/11/2019. SD/- SD/- (S. RIFAUR RAHMAN) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 06/11/2019 TANMAY SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. () / THE CIT(A)- 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI