DCIT CEN CIR 36, MUMBAI v. PBA INFRASTRUCTURE LTD, MUMBAI

ITA 7237/MUM/2012 | 2008-2009
Pronouncement Date: 28-10-2016 | Result: Dismissed

Appeal Details

RSA Number 723719914 RSA 2012
Assessee PAN AAACP7564K
Bench Mumbai
Appeal Number ITA 7237/MUM/2012
Duration Of Justice 3 year(s) 10 month(s) 23 day(s)
Appellant DCIT CEN CIR 36, MUMBAI
Respondent PBA INFRASTRUCTURE LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-10-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 28-10-2016
Date Of Final Hearing 04-06-2014
Next Hearing Date 04-06-2014
Assessment Year 2008-2009
Appeal Filed On 05-12-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C MUMBAI BEFORE SHRI R.C.SHARMA ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.7237/MUM/2012 (ASSESSMENT YEAR : 2008-09) DCIT CENTRAL CIRCLE- 36 ROOM NO. 11 AAYAKAR BHAVAN M.K. MARG M. K. ROAD MUMBAI-400020. VS. M/S PBA INFRASTRUCTURE LTD. 611/3 PRAKASH V.N. PURAV MARG CHEMBUR MUMBAI-400071. PAN: AAACP7564K (APPELLANT) (RESPONDENT) ITA NO.6587/MUM/2012 (ASSESSMENT YEAR : 2008-09) M/S PBA INFRASTRUCTURE LTD. 611/3 PRAKASH V.N. PURAV MARG CHEMBUR MUMBAI-400071. PAN: AAACP7564K VS. ASST. CIT CENTRAL CIRCLE- 36 GROUND FLOOR AAYAKAR BHAVAN M.K. MARG CHURCHGATE MUMBAI-400020. (APPELLANT) (RESPONDENT) REVENUE BY : SH. SAMUEL DERSE ( CIT-DR) ASSESSEE BY : SH. Y.P. TRIVEDI SR ADVOCATE WITH MS. USHA DALAL (AR) DATE OF HEARING : 04.08.2016 DATE OF PRONOUNCEMENT : 28.10.2016 O R D E R PER PAWAN SINGH JM: 1. THESE TWO CROSS APPEAL ARE DIRECTED AGAINST THE ORD ER OF CIT(A)-41 MUMBAI DATED 04.09.2012 FOR ASSESSMENT YEAR (AY) 20 08-09. 2 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COMPA NY IS ENGAGED IN THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT AND CIVIL CO NSTRUCTION FILED ITS RETURN OF INCOME ON 29.09.2008 DECLARING TOTAL INC OME AT RS. 61 44 707/-. A SEARCH AND SEIZURE ACTION WAS CARRIED OUT U/S 132 IN PBA GROUP CASES INCLUDING OF ASSESSEE ON 06.09.2007. DURING THE SEA RCH ACTION THE STATEMENT OF SHRI BALKRISHAN P. WADHAWAN VICE CHAIRMAN AND J OINT MANAGING DIRECTOR OF THE COMPANY WAS RECORDED U/S 132(4) ON 29.10.2007. THE ASSESSMENT WAS COMPLETED ON 31.12.2009 U/S 143(3) D ETERMINING THE TOTAL INCOME OF RS. 17 31 15 020/-. WHILE FRAMING THE ASS ESSMENT THE AO MADE NUMBER OF ADDITIONS IN VIEW OF THE STATEMENT OF DIR ECTOR. THE AO MADE ADDITION/ DISALLOWANCE OF RS. 98 02 688/- BEING 20% OF CASUAL LABOUR EXPENSES AMOUNT OF RS. 2 23 098/- ON ACCOUNT OF NO N-GENUINE EXPENDITURE IN RESPECT OF SALARY PAID TO TWO PERSONS WHO WERE N OT RENDERING ANY SERVICES TO THE COMPANY DISALLOWED RS. 2 79 222/- U/S 69C O N ACCOUNT OF UNEXPLAINED EXPENDITURE DISALLOWED RS. 30 00 000/- AS UNEXPLAINED EXPENDITURE U/S 11 73 318/- ON ACCOUNT OF PURCHASE OF CEMENT IN CASH U/S 69C AND DISALLOWANCE OF DEDUCTION U/S 80IA OF RS. 1 5 82 86 609/-. AS BUSINESS OF ASSESSEE WAS NOT ELIGIBLE AS REFERRED I N SECTION 80IA OF THE ACT. IN FIRST APPEAL BEFORE COMMISSIONER (APPEALS) THE A DDITIONS OF RS.5151638/- AND DISALLOWANCE OF CLAIM U/S80IA WAS SUSTAINED. THE AO ISSUED NOTICE U/S 274 R.W.S. 271(1)(C) ON 31.12.200 9. THE ASSESSEE CONTESTED THE NOTICE AND CONTENDED THAT THE DISALLOWANCE IS N EGLIGIBLE CONSIDERING THE ENORMOUS SIZE OF BUSINESS AND OPERATION OF THE COMP ANY. THERE WAS NO CONCEALMENT OR MALAFIDE INTENTION OR IF ANY THAT MA Y BE DUE TO SOME INADVERTENT INTERPRETATION OF LAW. IT WAS FURTHER C ONTENDED THAT THE TURNOVER DURING THE YEAR WAS OF RS. 37019.47 LAKHS AND THE D ISALLOWANCE IS NEGLIGIBLE IN QUANTUM THE ASSESSEE DURING THE ASSE SSMENT PROCEEDING SUBMITTED ALL RELEVANT INFORMATION AS REQUIRED AND PRAYED LENIENT VIEW BE TAKEN AND PROCEEDING MAY BE DROPPED. AFTER CONSIDER ING THE CONTENTION OF 3 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. THE ASSESSEE THE AO CONCLUDED THAT EXCEPT THE ADDI TION/DISALLOWANCE OF LABOUR CHARGES OF RS. 98 02 968/- WHICH HAS BEEN DE LETED BY LD. CIT(A) THE ASSESSEE REPLY IS NOT ACCEPTABLE IN RESPECT OF OTHE R ADDITION OF RS. 51 51 638/- AND DISALLOWANCE OF DEDUCTION U/S 80IA OF RS. 15 52 86 609/-. THE AO LEVIED THE MINIMUM PENALTY @ 18% OF THE TAX SOUGHT TO BE EVADED AT RS. 5 45 39 960/-. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE FILED AP PEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE RAISED THE ADDITIONAL GROUNDS OF APPEAL THAT AO ERRED IN LEVYING THE PENALTY U/S 271 (1)(C) INSTEAD OF LEVYING PENALTY U/S 271AA OF THE ACT. THE ADDITIONAL GROUND OF APPEAL OF ASSESSEE WAS ALLOWED BY AO BY INVOKING THE PROVISIONS OF SEC TION 292B. THE LD. CIT(A) FURTHER OBSERVED THAT SEARCH ACTION WAS CARR IED OUT ON 07.09.2007 THE PENALTY U/S 271AAA IS APPLICABLE IN THIS CASE A S SECTION 271AAA WAS INTRODUCED BY FINANCE ACT 2007 W.E.F. 01.07.2007 I .E. RELEVANT FOR AY 2008-09. THE LD. CIT(A) DIRECTED THE AO TO RE-COMPU TE THE PENALTY OF UNDISCLOSED INCOME ON ACCOUNT OF WRONG CLAIM OF DED UCTION U/S 80IA AS WELL AS ON THE ADDITIONS OF RS. 51 51 638/-. FURTHE R AGGRIEVED BY THE ORDER OF LD. CIT(A) THE REVENUE FILED THE APPEAL ITA NO .7237/M/2012 BEFORE US CHALLENGING THE VALIDITY OF ORDER PASSED U/S 271AA THAT AO HAS RIGHTLY LEVIED THE PENALTY U/S 271(1)(C) AND THAT LD. CIT( A) ERRED IN DIRECTING THE AO TO RE-COMPUTE THE PENALTY U/S 271AAA @ 10% ON UN DISCLOSED INCOME. AND THE ASSESSEE HAS FILED THE CROSS APPEAL ITA NO. 6587/M/2012. 3. WE HAVE SEEN THAT THE ASSESSEE VIDE APPLICATION DAT ED 21.03.2006 RAISED FOLLOWING ADDITIONAL GROUND OF APPEAL: 1. LD. AO/CIT(A)S OUGHT TO HAVE HELD THAT THE NOTICE DATED 31.12.2009 ISSUED U/S 271(1)(C) WAS DEFECTIVE SINCE IN THAT THERE WAS NO MENTION WHETHER THE ASSESSEE WAS GUILTY OF CONCEALMENT OF INCOME OR FIL LING OF INACCURATE PARTICULAR OF INCOME. 2. WITHOUT PREJUDICE TO THE ABOVE THE CIT(A)S HAS ER RED IN LEVYING PENALTY U/S 271AAA WHEN THERE NO NOTICE FOR LEVYING SUCH PENALT Y WAS ISSUED TO THE ASSESSEE. 3. THE CIT(A)S ACTION IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 4 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. 4. THE CIT(A)S OUGHT TO HAVE HELD THAT HE HAD NO POWE R TO CHANGE THE BASIS OF LEVYING PENALTY UNDER A NEW SECTION NOT EVEN CONTEM PLATED BY THE AO BY INVOKING THE PROVISIONS OF SECTION 292B OF THE INCOME TAX AC T 1961. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE RE VENUE ON THE APPLICATION ON THE APPLICATION FOR RAISING ADDITION AL GROUND OF APPEAL AND THE ADDITIONAL GROUND AND PERUSED THE MATERIAL AVAI LABLE ON RECORD. THE LD. AR OF THE ASSESSEE IN SUPPORT OF HIS APPLICATION FO R ADDITIONAL GROUND OF APPEAL SUBMITTED THAT AS PER THE DECISION OF HONBL E SUPREME COURT IN CASE OF NTPC VS. CIT REPORTED IN 229 ITR 383 THE ASSESS EE CAN RAISE ADDITIONAL GROUND OF APPEAL IF NO FURTHER ADDITIONAL FACT IS R EQUIRED TO BE BROUGHT ON RECORD. IT WAS SUBMITTED THAT ADDITIONAL GROUNDS OF APPEAL ARE PURELY LEGAL IN NATURE. ON THE OTHER HAND LD. DR FOR THE REVENUE A RGUED THAT THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE ARE MISCONCEIVE D AND HAVE NO FORCE UNDER THE LAW. 5. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND ARE OF THE CONSIDERED VIEW THAT THE ADDITIONAL GROUNDS OF APPE AL ARE PURELY LEGAL IN NATURE THUS THE SAME ARE ADMITTED AND TAKEN ON RECO RD. 6. IN SUPPORT OF ADDITIONAL GROUND OF APPEAL IT WAS AR GUED BY LD. AR FOR THE ASSESSEE THAT WHILE ISSUING THE NOTICE OF PENALTY U /S 274 RWS 271(1) (C ) THE AO HAS NOT STRIKE THE PORTION OF NOTICE SPECIFYING UNDER WHICH LIMB OF CHARGE THE PENALTY IS PROPOSED. AS THE SPECIFIC CHA RGE WAS NOT DISCLOSED IN THE NOTICE THUS THE ALL THE PROCEEDING HAS BECOME I NVALID. THE LD AR FOR THE ASSESSEE RELIED ON THE DECISION OF CIT VS MANJU NATH COTTON AND GINNING FACTORY (2015) 35 TAXMAN.COM 250. ON THE H AND THE LD DR FOR THE REVENUE ARGUED THAT ASSESSEE WAS GIVEN OPPORTUN ITY BY AO BEFORE LEVYING THE PENALTY. THE LD. DR FOR THE REVENUE ARG UED THAT AS PER MANDATE OF SECTION 274 OF THE ACT THE ASSESSEE WAS GIVEN OPPORTUNITY; THE OPPORTUNITY OF HEARING IS LARGER THAN THE SERVICE O F NOTICE. MERE NON- 5 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. STRIKING OUT THE PORTION THAT PENALTY IS PROPOSED F OR THE CONCEALMENT OF INCOME OR FOR FILING OF INACCURATE PARTICULAR OF IN COME IS NOT FATAL. MOREOVER THE CONSEQUENCE OF BOTH THE LIMBS OF CHAR GES OF PENALTY IS THE SIMILAR. THERE IS NO DIFFERENT IN THE DEGREE OF PEN ALTY EITHER FOR CONCEALMENT OR FOR FILING INACCURATE PARTICULARS. T HE ASSESSEE NEVER OBJECTED EITHER BEFORE THE AO OR BEFORE THE CIT(A) ABOUT THE DEFECT IN NOTICE. THE LD. DR FOR REVENUE RELIED UPON THE DE CISION OF JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. SMT. KAUSHALYA REPORT ED VIDE 216 ITR 660 (BOM). 7. WE HAVE CONSIDERED THE CONTENTION OF BOTH THE PARTI ES ON THE ADDITIONAL GROUND NO.1 RAISED BY ASSESSEE. THE HONBLE JURISDI CTIONAL HIGH COURT IN CIT VS. SMT. KAUSHALYA (SUPRA) HELD:- RULES OF NATURAL JUSTICE CANNOT BE IMPRIS ONED IN ANY STRAIGHT-JACKET FORMULA. FOR SUSTAINING A COMPLAINT FOR FAILURE OF PRINCIPLE S OF NATURAL JUSTICE ON THE GROUND OF ABSENCE OF OPPORTUNITY IT HAS TO BE ESTA BLISHED THAT PREJUDICE IS CAUSED TO THE CONCERNED PERSON BY THE PROCEDURE FOL LOWED. THE ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING TH E ASSESSEE ABOUT PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN A S TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON -STRIKING OFF OF INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. ENTIRE FACTUAL BACKGROUND WOULD FALL FOR CONSIDERATION IN THE MATT ER AND NO ONE ASPECT WOULD BE DECISIVE. IN THIS CONTEXT USEFUL REFERENCE MAY BE MADE TO THE FOLLOWING OBSERVATION IN THE CASE OF CIT V. MITHILA MOTORS (P.) LTD. [1984] 149 ITR 751 (PAT.). 8. AFTER CONSIDERING THE CONTENTION OF BOTH THE PARTIE S WE ARE RESPECTFULLY FOLLOWING THE DECISION OF BOMBAY HIGH COURT IN CIT VS KAUSHALYA (SUPRA) WHICH AS BINDING PRECEDENT UPON THIS TRIBUNAL. HENC E WE ARE INCLINED TO DISMISS THE ADDITIONAL GROUND NO.1 RAISED IN THE PR ESENT APPEAL. 9. THE SECOND ADDITIONAL GROUND OF APPEAL IS THAT LD C IT(A) ERRED IN LEVYING THE PENALTY U/S 271AAA WHEN NO NOTICE FOR LEVYING SUCH PENALTY WAS SERVED. 10. THE LD AR FOR THE ASSESSEE ARGUED THAT THAT LD CIT (A) COMMITTED ERROR WHILE DIRECTING THE AO TO RE-COMPUTE THE PENALTY AT THE RATE OF 10% OF UNDISCLOSED INCOME ON ACCOUNT OF WRONG CLAIM UNDER SECTION 80IA OF THE 6 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. ACT AND ON THE ADDITION OF UNDISCLOSED INCOME. IT W AS FURTHER ARGUED THAT THAT CIT(A) HAVE NO POWER TO CHANGE THE BASIS OF LE VYING THE PENALTY. ON THE OTHER HAND THE LD DEPARTMENTAL REPRESENTATIVE FOR REVENUE SUPPORTED THE ORDER OF AO. IT WAS ARGUED THAT DURING THE FIRST AP PELLATE PROCEEDING IT WAS THE SUBMISSION OF THE ASSESSEE THAT THAT ASSESSING OFFICER ORDER LEVIED PENALTY UNDER SECTION 271(1)( C) INSTEAD OF LEVYING UNDER SECTION 271AAA AND THE ASSESSEE IS NOW ESTOPPED TO RAISE THE SAME BEFORE THE TRIBUNAL. 11. WE HAVE CONSIDERED THE RIVAL CONTENTION OF LD AR OF THE PARTIES AND GONE THROUGH THE ASSESSMENT ORDER DATED 30 DECEMBER 2009 PENALTY ORDERS DATED 27 TH MARCH 2012 AND THE ORDER OF LD CIT(A) CHALLENGED BEFORE US IN BOTH THE APPEALS. WE HAVE NOTICED THAT WHILE FRAMIN G ASSESSMENT ORDER THE AO INITIATED PENALTY FOR FURNISHING INACCURATE OF I NCOME UNDER SECTION 271(1) (C) OF THE ACT FOR EACH AND EVERY ADDITION A ND DISALLOWANCE OF CLAIM U/S 80IA. THE AO LEVIED PENALTY UNDER SECTION 271(1 ) (C) OF THE ACT. THE ACTION OF THE AO WAS BASICALLY WRONG. THE LD CIT(A) WHILE HEARING THE APPEAL AND ON THE BASIS OF GROUNDS OF APPEAL RAISED BEFORE HIM NOTICED THAT THE PROVISIONS OF SECTION 271AAA WERE APPLICABLE AS THE ASSESSMENT WAS BASED ON THE SEARCH U/S132. THE LD CIT(A) BY INVOKI NG THE PROVISION OF SECTION 292B RECTIFIED THE PENALTY PROCEEDING AND T REATED THE SAME UNDER SECTION 271AAA IN PLACE OF 271(1) (C) AND DIRECTED THE AO ACCORDINGLY. 12. THE SECTION 271 AAA WAS BROUGHT ON THE STATUTE BOOK BY FINANCE ACT 2007 WITH EFFECT FROM 01.04.2007. SUB SECTION (3) OF SEC TION 271AAA CLEARLY SPECIFIED THAT NO PENALTY UNDER THE PROVISIONS OF C LAUSE (C ) OF SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESS EE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1). THE PROVISIONS OF PENALTY UNDER SECTION 271AAA WAS INSERTED ONLY IN RESPECT O F CASES WHERE SEARCH HAS BEEN INITIATED AFTER 1 ST DAY OF JUNE 2007. ADMITTEDLY IN THE PRESENT CASE THE SEARCH WAS CARRIED OUT ON 7 SEPTEMBER 2007; AND THUS NO ACTION UNDER SECTION 271(1) ( C ) OF THE ACT WAS LIABLE TO BE TA KEN AGAINST THE ASSESSEE. 7 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. THE LD CIT(A) TRIED TO RECTIFY THE MISTAKE DURING THE FIRST APPELLATE STAGE BY INVOKING SECTION 292B OF THE ACT. THE HONBLE PUNJAB AND HARYANA HIGH COURT IN CIT V S NORTON MOTORS (2005) 275 ITR 595 (PUN) HELD: THAT THERE IS NOTHING IN THE PLAIN LANGUAGE O F THAT SECTION (292B) FROM WHICH IT CAN BE INFERRED THAT THE SAME CAN BE RELIED UPON FOR CURING THE JURISDICTIONAL DEFECT IN THE ASSESSMENT NOTICE SUMMONS OR OTHER PROCEEDING TAKEN BY AN AUTHORITY SUFFER F ROM AN INHERENT LACUNA AFFECTING HIS/ ITS JURISDICTION THE SAME C ANNOT BE CURED BY HAVING RESORT TO SECTION 292B OF THE ACT. FURTHER THE HONBLE CALCUTTA HIGH COURT IN GAJENDRA KUMAR BANTHIA VS UNION OF INDIA (1996) 222 ITR 632 HELD: THAT IT IS WELL SETTLED POSITION THAT AN I LLEGAL OR INVALID NOTICE CANNOT BE CURED. SECTION 292B DOES NOT COVER A CASE OF NON-SERVICE ON WHEN THE NOTICE IS NOT IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THE ACT. WE HAVE FURTHER NOTICE THAT AS PER SUB-SECTIONS TO SECTION 271AAA NO PENALTY IS LEVIABLE AGAINST THE ASSESSEE IF THE ASS ESSEE IN THE COURSE OF SEARCH MADE A STATEMENT UNDER SUBSECTION (4) OF SECTION 13 2 AND ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHIC H SUCH INCOME HAS BEEN DERIVED. ADMITTEDLY NO SUCH NOTICE OR SHOW CAU SE NOTICE TO SUBSTANTIATE THE UNDISCLOSED INCOME DISCLOSED DURI NG THE SEARCH OPERATION WAS GIVEN TO THE ASSESSEE. THUS THE ACTION INITIATE D BY THE ASSESSING OFFICER UNDER SECTION 271(1) (C) WAS WRONG. FURTHER THE LD CIT(A) COMMITTED JURISDICTIONAL ERROR TO RECTIFY THE PROCEEDING U/S 292B WHICH IS NOT PERMISSIBLE AS PER THE DECISION OF PUNJAB AND HARYA NA HIGH COURT IN CIT VS NORTON MOTORS (SUPRA) AND IN GAJENDRA KUMAR BANT HIA VS UNION OF INDIA(SUPRA). 13. THUS CONSIDERING THE ABOVE DISCUSSED LEGAL POSITION THE PENALTY PROCEEDINGS INITIATED BY ASSESSING OFFICER WHILE FRAMING ASSESS MENT AND SERVING SUBSEQUENT NOTICE UNDER SECTION 274 READ WITH SECTI ON 271(1) (C )WAS 8 ITA NOS. 7237 & 6587/M/2012- M/S PBA INFRASTRUCTURE LTD. INVALID AND THE LD CIT(A) COMMITTED JURISDICTIONAL ERROR WHILE RECTIFYING THE SAME BY INVOKING THE PROVISION OF SECTION 292B OF T HE ACT. WITH THIS OBSERVATION WE ACCEPT THE ADDITIONAL GROUND NO.2 RA ISED BY ASSESSEE IN BOTH THE APPEALS. AS WE HAVE HELD THAT INITIATION O F PENALTY UNDER SECTION 271(1) (C) WAS ILLEGAL AND INVALID AND THE SAME WAS NOT LIABLE TO BE RECTIFIED BY INVOKING SECTION 292B THUS THE APPEAL OF THE ASS ESSEE IN ITA NO. 6587/M/2012 IS ALLOWED. AS WE HAVE ACCEPTED THE ADD ITIONAL NO.2 AND ALLOWING THE APPEAL OF THE ASSESSEE THUS THE DISCUS SION ON OTHER GROUNDS OF APPEAL HAS BECOME ACADEMIC. 14. AS WE HAVE ALLOWED THE APPEAL OF ASSESSEE AND HELD THAT THE INITIATION OF PENALTY PROCEEDING BY ASSESSING OFFICER UNDER SECTI ON 271(1) ( C) WAS ILLEGAL AND INVALID WHICH WAS NOT LIABLE TO BE RECTIFIED BY LD CIT(A) THUS THE APPEAL FILED BY THE REVENUE IS DISMISSED. IN THE RESULT AP PEAL FILED BY ASSESSEE IS ALLOWED AND APPEAL BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH OCTOBER 2016. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 28/10/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT.REGISTRAR) ITAT MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY/