ITO 24(2)(3), MUMBAI v. RANK RECREATION, MUMBAI

ITA 4586/MUM/2010 | 2007-2008
Pronouncement Date: 28-07-2011 | Result: Dismissed

Appeal Details

RSA Number 458619914 RSA 2010
Assessee PAN AAFFR7098N
Bench Mumbai
Appeal Number ITA 4586/MUM/2010
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant ITO 24(2)(3), MUMBAI
Respondent RANK RECREATION, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 28-07-2011
Assessment Year 2007-2008
Appeal Filed On 03-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D : MUMBAI BEFORE SHRI R.V. EASWAR (PRESIDENT) AND SHRI RAJENDRA SINGH (ACCOUNTANT MEMBER) ITA NO.4586/MUM/2010 ASSESSMENT YEAR : 1996-97 INCOME TAX OFFICER WARD 24(2)(3) 6 TH FLOOR C-13 BLDG. ROOM NO.603 PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA(E) MUMBAI-400 051. ..( APPELLANT ) VS. M/S. RANK RECREATION 704 SHUKRA GAUSHALA LANE MALAD(W) MUMBAI-400 064. ..( RESPONDENT ) P.A. NO. (AAFFR 7098 N) APPELLANT BY : SHRI M.R. KUBAL RESPONDENT BY : SHRI JA IDEV DATE OF HEARING : 28.07.2011 DATE OF PRONOUNCEMENT : 28 TH JULY 2011 O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17.3.2010 OF CIT(A) FOR THE ASSESSMENT YEAR 1996-97 . THE ONLY DISPUTE RAISED IN THIS APPEAL IS REGARDING LEVY OF PENALTY UNDER SECTION 271 (1)(C) OF THE INCOME TAX ACT. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FOR THE RELEVANT YEAR HAD SHOWN LOAN OF RS.5.00 LACS FROM M /S. BLUE HEAVEN BUILDERS ITA NO.4586/M/10 A.Y:96-97 2 PVT. LTD. ASSESSEE DID NOT PRODUCE ANY EVIDENCE T O EXPLAIN THE LOAN AND AO THEREFORE TREATED THE SAME AS INCOME OF THE ASSESSE E WHICH IN APPEAL WAS CONFIRMED BY THE CIT(A) ON THE GROUND THAT THE ASSE SSEE HAD FAILED TO ESTABLISH THE IDENTITY OF THE CREDITOR CREDITWORTH INESS AND GENUINENESS OF THE TRANSACTION. BEFORE THE TRIBUNAL THE ASSESSEE FIL ED ADDITIONAL EVIDENCE IN THE FORM OF LOAN CONFIRMATION ALONG WITH PAN OF THE CRE DITOR. THE ASSESSEE ALSO SUBMITTED THAT THE LOAN HAD BEEN TAKEN BY CHEQUE AN D BANK STATEMENT OF THE CREDITOR HAD BEEN SUBMITTED BEFORE THE CIT(A). THE TRIBUNAL THEREFORE ADMITTED THE ADDITIONAL EVIDENCE AND RESTORED THE I SSUE TO AO FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION AND AFTER A LLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE MEANTIME THE AO H AD LEVIED PENALTY UNDER SECTION 271(1)(C) IN RELATION TO THE SAID ADDITION WHICH HAD BEEN CONFIRMED BY THE CIT(A). IN THE APPELLATE ORDER AGAINST THE PENALTY THE CIT(A) TAKING NOTE OF THE FACT THAT THE ADDITION HAD BEEN RESTOR ED TO THE AO DELETED THE PENALTY AGGRIEVED BY WHICH REVENUE IS IN APPEAL BE FORE THE TRIBUNAL . 3. BEFORE US THE LD. AR FOR THE ASSESSEE SUBMITTE D THAT PENALTY COULD NOT SURVIVE AS ASSESSMENT ORDER ITSELF HAD BEEN SET ASIDE AND ISSUE RESTORED TO AO. MOREOVER IN THE FRESH ASSESSMENT ORDER DATE D 27.12.2010 AO HAD NOT MADE ANY ADDITION AND THEREFORE PENALTY HAD T O BE DELETED. THE LD. DR FAIRLY CONCEDED THAT IN VIEW OF THE FACTUAL POSITIO N MENTIONED ABOVE THE PENALTY ORDER COULD NOT SURVIVE. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. PENALTY UNDER SECTION 271 (1)(C) HAS BEEN LEVIED IN RELATION TO ADDITION OF ITA NO.4586/M/10 A.Y:96-97 3 RS. 5.00 LACS ON ACCOUNT OF LOAN TAKEN BY THE ASSESSEE. THE ADDITION MADE IN THE ASSESSMENT WAS SET ASIDE BY THE TRIBUNAL AND TH E ISSUE WAS RESTORED TO THE AO VIDE ORDER DATED 28.8.2009 IN ITA NO.1391/MU M/2008. THE PENALTY ORDER THEREFORE CANNOT SURVIVE. MOREOVER IN THE FRESH ASSESSMENT ORDER PASSED AO HAS NOT MADE ANY ADDITION ON ACCOUNT OF LOAN OF RS.5.00 LACS IN RELATION TO WHICH PENALTY HAD BEEN LEVIED. WE THE REFORE SEE NO INFIRMITY IN THE ORDER OF THE CIT(A) CANCELING THE PENALTY. ORD ER OF CIT(A) IS ACCORDINGLY UPHELD. 5. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 28.7.2011. SD/- SD/- (R.V. EASWAR) (RAJENDRA SINGH ) PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED: 28.7.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.