SUDHIR VORA, MUMBAI v. ACIT- CC -3(2), MUMBAI

ITA 5109/MUM/2018 | 1998-1999
Pronouncement Date: 27-11-2019 | Result: Allowed

Appeal Details

RSA Number 510919914 RSA 2018
Assessee PAN AABPV7456Q
Bench Mumbai
Appeal Number ITA 5109/MUM/2018
Duration Of Justice 1 year(s) 2 month(s) 23 day(s)
Appellant SUDHIR VORA, MUMBAI
Respondent ACIT- CC -3(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 27-11-2019
Last Hearing Date 31-10-2019
First Hearing Date 31-10-2019
Assessment Year 1998-1999
Appeal Filed On 04-09-2018
Judgment Text
1 ITA 5109/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) &SHRI PAWAN SINGH (J M) ITA NO. 5109/MUM/2018(AY:1998-99) SUDHIR VORA MOHESHWAR MANSION 602 6 TH FLOOR BAPUBHAI VASHI ROAD VILE PARLE MUMBAI-56 PAN : AABPV7456Q VS ACIT CC-3(2) MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI AL SHARMA (AR) RESPONDENT BY SHRI AKHTAR H ANSARI (SR.DR) DATE OF HEARING 27-11-2019 DATE OF PRONOUNCEMENT 27-11-2019 O R D E R PER PAWAN SINGH JM : 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-51 MUMBAI DATED 04-06-2018 WHICH IN TURN A RISES AGAINT THE PENALTY LEVIED UNDER SECTION 271(1)(C) DATED 31.03 .2015 FOR ASSESSMENT YEAR 1998-99. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL:- 1. A.ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) ERRED IN HOLDING THAT THE PENALTY LEVIED OF RS.1400000/- U/S 271(1)(C) ON THE QUANTUM ADDITION RELATED TO THE COMMISSION INCOME EARNED STANDS CONFIRMED ON THE QUANTUM AS DETERMINED BY THE AO AS PER THE DIRECTIO N OF HON BLE ITAT. B. THE LEARNED CIT(A) ERRED IN STATING THAT PENALTY IS CONFIRMED INSPITE OF THE FACT THAT HON BLE TRIBUNAL HAS SET 2 ITA 5109/MUM/2018 ASIDE THE ASSESSMENT TO THE FILE OF THE AO AND AS S UCH APPELLANT SUBMITS THAT THE PENALTY ORDER IS ALSO TO BE SET ASIDE. 2. AT THE OUTSET OF HEARING THE LD.AR OF THE ASSESSEE SUBMITS THAT THE ADDITION ON THE BASIS OF WHICH PENALTY WAS LEVIED B Y AO HAS BEEN RESTORED BACK TO THE FILE OF AO BY TRIBUNAL VIDE ORDER DATED 28-09- 2017 IN ITA NO.4621&4622/M/2013 & 4440&4441/M2013. THE LD. AR SUBMITS THAT ONCE THE ADDITION HAS BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER ON WHICH PENALTY WAS LEVIED; THE PENALTY ORDER WOULD NOT SURVIVE. THE LD.AR FURNISHED COPY OF ORDER OF THE TRIBUNAL DATED 29-08-2017. 3. ON THE OTHER HAND THE LD. DR FOR THE REVENUE AFTE R GOING THROUGH THE CONTENTS OF THE ORDER OF TRIBUNAL DATED 29-08-2017 SUBMITS THAT THE FACT WAS CONSIDERED BY THE LD. CIT(A) IN HIS ORDER WHILE CONFIRMING THE PENALTY. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND T HAT THE LD. CIT(A) DESPITE RECORDING THE FACT AT PARA 5 OF HIS ORDER T HAT THE TRIBUNAL HAS RESTORED TO THE FILE OF AO STILL PASSED CONTRADIC TORY ORDER. 5. WE HAVE SEEN THAT THE ASSESSING OFFICER LEVIED PENA LTY OF RS. 140 000/- (BEING LITTLE HIGHER OF 100%) OF TAX SOUGHT TO BE EVADED). ON THE 3 ITA 5109/MUM/2018 DISALLOWANCE OF ALLEGED UN-RECORDED COMMISSION OF R S.4 39 494/-. THERE IS NO OTHER ISSUE OR DISALLOWANCES ON WHICH P ENALTY WAS LEVIED. WE HAVE FURTHER SEEN THAT THE DISALLOWANCE OF RS. 4 39494/- HAVE BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER BY TRIBUNAL IN ITS ORDER DATED 29.08.2017 WITH THE FOLLOWING DIRECTION: 23. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED T HE CONFIRMATION OF COMMISSION OF RS. 4 39 494/-. THE CONTENTION OF ASSESSEE IS THAT THE SAID AMOUNT HAS ALREADY BEEN ASSESSED WITH HIS BROTHER NARESH B VORA THEREFORE THE SAID COMMISSION IS NOT LIABLE TO BE CONSIDERED IN THE HAND OF ASSESSEE THEREFORE IN THE SAID CIRCUM STANCES THE PRESENT ADDITION IS NOT JUSTIFIABLE WHICH CAN BE VERIFIED I N ACCORDANCE WITH LAW. THIS FACT NEEDS TO BE VERIFICATION THEREFORE F INDING OF THE CIT(A) IN THIS REGARD DOES NOT SEEMS JUSTIFIABLE HE NCE ORDER IN THIS REGARD IS HEREBY ORDERED TO BE SET-ASIDE AND WE RES TORED THIS ISSUE ON THE FILE OF THE AO TO VERIFY THIS FACT THAT AN AMOU NT OF RS. 4 39 494/- AND IT S COMMISSION HAS ALREADY BEEN CONSIDERED IN THE HAN D OF THE ASSESSEE OR NOT. THE AO WOULD PASS THE ORDER ON THI S ISSUE AFTER GIVING AN OPPORTUNITY BEING HEARD TO THE ASSESSEE. ACCORDINGLY THIS ISSUE IS BEING DECIDED IN FAVOUR OF ASSESSEE AGAINS T THE REVENUE. 6. CONSIDERING THE FACT THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED FOR THE YEAR UNDER CONSIDERATION HAS BE EN SET-ASIDE THEREFORE WE ARE OF THE VIEW THAT PENALTY ORDER WI LL NOT SURVIVE AT THIS JUNCTURE. THEREFORE THE PENALTY ORDER DATED 31-03 -2015 IS SET ASIDE/ QUASHED. HOWEVER THE ASSESSING OFFICER IS AT LIBE RTY TO INITIATION OF 4 ITA 5109/MUM/2018 PENALTY IN ACCORDANCE WITH LAW AFTER GIVING EFFECT TO THE ORDER OF TRIBUNAL DATED 29-08-2017. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 27-11-2019. SD/- SD/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI DT : 27 TH NOVEMBER 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR ITAT MUMBAI