ARCO ELECTRO TECHNOLOGIES P.LTD, MUMBAI v. JCIT (OSD) RG 8(1), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI BEFORE S/SHRI B.R.MITTAL (JM) AND RAJENDRA (AM) . . ./I.T.A. NO.5569/MUM/2012 ( / ASSESSMENT YEAR:2007-08) M/S ARCO ELECTRO TECHNOLOGIES PVT.LTD MIDC MAROL ANDHERI (EAST) MUMBAI-400072 / VS. JOINT COMMISSIONER OF INCOME TAX(OSD)RANGE 8(1) 2 ND FLOOR AYAKAR BHAVAN M.K.ROAD MUMBAI-400020 ( & / APPELLANT) .. ( ' & / RESPONDENT) ./ ./PAN/GIR NO. : AAACA4336L & / APPELLANT BY : SHRI DHIRENDRA M SHAH ' & * /RESPONDENT : SHRI SURENDRA KUMAR * - / DATE OF HEARING : 29.10.2013 * - /DATE OF PRONOUNCEMENT : 31.10.2013 / O R D E R PER B.R.MITTAL JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2007-08 AGAINST ORDER DATED 18.7.2012 OF LD. CIT(A)-16 MUMBAI VIDE WHIC H THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT 1961(THE ACT) OF RS.14 30 825/- HAS BEEN CONFIRMED. 2. AT THE TIME OF HEARING LD. AR FILED A COPY OF THE ORDER OF TRIBUNAL DATED 15.2.2013 IN ITA NO.7250/MUM/2010 (AY-2007-08) AND SUBMITTED THAT QUANTUM IN RESPECT OF WHICH PENALTY HAS BEEN LEVIED BY AO HAS BEEN DELETED BY TRIBUNAL. HE SUBMITTED THAT PENALTY AS CONFIRMED BY LD. CIT(A) BE CANCELED. LD. DR HAS NOT DISPUTED THE ABOVE SUBMISSIONS OF LD. AR. 3. WE HAVE CONSIDERED THE ORDERS OF AUTHORITIES BEL OW SUBMISSIONS OF LD. REPRESENTATIVES OF THE PARTIES AND CAREFULLY CONSI DERED THE ORDER OF TRIBUNAL DATED 15.2.2013 (SUPRA). WE OBSERVE THAT TRIBUNAL BY ITS AFORESAID ORDER IN THE QUANTUM APPEAL HAS HELD THAT THE EXPENDITURE AMOUNTING TO R S.42.09 LAKHS IS THE BUSINESS EXPENDITURE AND ACCORDINGLY DECIDED THE ISSUE IN F AVOUR OF THE ASSESSEE. THEREFORE I.T.A. NO.5569/MUM/2012 2 THE VERY BASIS IN RESPECT OF WHICH THE PENALTY U /S 271(1)( C ) OF THE ACT HAS BEEN LEVIED DOES NOT SURVIVE AS THE TRIBUNAL HAS DELETED THE DISALLOWANCE OF PAYMENT OF COMMISSION OF RS.42 09 552/-. THE HONBLE RAJASTH AN HIGH COURT IN THE CASE OF CIT V/S COSMOPOLITAN TRADING CORPN. 274 ITR 640(RAJ) HAS HELD THAT WHEN THE ENTIRE ADDITION HAD BEEN DELETED IN THE QUANTUM APPEAL NO REASON SURVIVES FOR SUSTAINING THE PENALTY LEVIED U/S 271(1)( C ) OF THE ACT. IN VIE W OF THIS WE CANCEL THE PENALTY OF RS.14 30 825/- LEVIED U/S.271(1)(C) OF THE ACT BY ALLOWING THE APPEAL TAKEN BY ASSESSEE. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THE 31ST OCTOBER 2013 * 1 2 31ST OCTOBER 2013 * SD/- SD/ - ( /RAJENDRA ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 31/10/2013 . . ./ SRL SR. PS / COPY OF THE ORDER FORWARDED TO : 1. & / THE APPELLANT 2. ' & / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- CONCERNED 4. 6 / CIT CONCERNED 5. 7 '9 - 9 / DR ITAT MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER TRUE COPY (ASSTT. REGISTRAR) - 9 /ITAT MUMBAI