ANAMIKA REAL ESTATE P. LTD, MUMBAI v. ITO WD 9(1)(1), MUJBMAI

ITA 250/MUM/2009 | 2002-2003
Pronouncement Date: 29-10-2010 | Result: Allowed

Appeal Details

RSA Number 25019914 RSA 2009
Assessee PAN AABCA1819K
Bench Mumbai
Appeal Number ITA 250/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 16 day(s)
Appellant ANAMIKA REAL ESTATE P. LTD, MUMBAI
Respondent ITO WD 9(1)(1), MUJBMAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-10-2010
Date Of Final Hearing 06-04-2010
Next Hearing Date 06-04-2010
Assessment Year 2002-2003
Appeal Filed On 12-01-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI J. SUDHAKAR REDDY A.M. AND SHRI V. DUR GA RAO J.M. ITA NO. 250/M/2009 ASSESSMENT YEAR: 2002-03 M/S ANAMIKA REAL ESTATE P. LTD. APPELLANT BWNZER TOWER 2 ND FLOOR NEAR SANSKRUTI THAKUR COMPLEX KANDIVALI (EAST) MUMBAI 400 101. (PAN AABCA1819K) VS. INCOME TAX OFFICER WARD 9(1)(1) RESPONDENT AAYAKAR BHAVAN 2 ND FLOOR M.K. ROAD MUMBAI 400 020. APPELLANT BY : MR. PRAKASH JOTWANI RESPONDENT BY : MR. K. SINGH ORDER PER V. DURGA RAO J.M.: THIS APPEAL FILED BY THE ASSESSEE ARE DIRECTED AGAI NST THE ORDER OF LEARNED CIT(A) IX MUMBAI PASSED ON 19/11/2008 FO R THE ASSESSMENT YEAR 2002-03 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE P ENALTY LEVIED YOUR APPELLANT PRAYS THE PENALTY BE DELETED. 2. THE LEARNED CIT(A) HAS NOT PROPERLY CONSIDERED A ND APPRECIATED THE SUBMISSIONS MADE IN THE COURSE OF APPELLATE PROCEED INGS. 3. BOTH THE LEARNED CIT(A) AND THE AO HAS NOT ESTAB LISHED OR BROUGHT ON RECORD THE CONCEALMENT OF THE PARTICULARS OF HIS INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME WHICH WERE WITHOUT REASONABLE CAUSE ON THE PART OF YOUR APPELLANT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT FOR N ON FILING OF RETURN OF ITA NO. 250/M/09 M/S ANAMIKA REAL ESTATE P. LTD. 2 INCOME FOR THE YEAR UNDER CONSIDERATION. AGAINST TH E SAID NOTICE THE ASSESSEE FILED ITS RETURN OF INCOME ON 25/10/2005 A LONG WITH AUDITED ACCOUNTS DECLARING A NET LOSS OF RS. 2 54 012/-. SI NCE THE RETURN IS TIME BARRED IT WAS TREATED AS INVALID. THE ASSESSMENT W AS COMPLETED U/S 144 RWS 147 OF THE ACT ON 03/03/2006 DETERMINING THE TO TAL INCOME AT RS. 5 67 05 537/- BEING EXCESS RECEIPT OVER AND ABOVE T HE WORK IN PROGRESS. THE AO NOTICED THAT THE ASSESSEE HAD SHOWN STAGNANT WIP OF RS. 7.00 CRORES HOWEVER THE ASSESSEE HAD EXCESS RECEIPTS O F RS. 12 71 08 104/-. THEREFORE THE AO ADDED RS. 5 67 05 573/- AS INCOME OF THE ASSESSEE BEING THE EXCESS RECEIPT OVER THE WORK IN PROGRESS. THE A CTION OF THE AO HAS BEEN CONFIRMED BY THE CIT(A). THEREAFTER THE AO INITIAT ED PENALTY PROCEEDINGS ON THE GROUND THAT THE ASSESSEE HAD CONCEALED PARTICUL ARS OF ITS INCOME BY FURNISHING INACCURATE PARTICULARS AND PENALTY IS LE VIABLE U/S 271(1)(C) OF THE ACT. HENCE THE AO LEVIED MINIMUM PENALTY LEVIABLE BEING 100% OF TAX SOUGHT TO BE EVADED ON INCOME OF RS. 5 67 05 537/- WHICH COMES TO RS. 2 02 43 836/-. THE AO LEVIED PENALTY OF RS. 2 10 00 000/- U/S 271(1)(C) OF THE ACT. THE CIT(A) AFTER CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE CONFIRMED THE PENALTY LEVIED BY THE AO RELYING UPON THE JUDGMENT IN THE CASE OF DILIP N SHROFF 291 ITR 519. 3. BEFORE US THE LEARNED AR SUBMITTED THAT IN THE QUANTUM APPEAL THE ITAT VIDE ITS ORDER DATED 30 TH APRIL 2010 IN ITA NO. 2065/MUM/20078 HAS SET ASIDE THE ORDER OF CIT(A) AND REMITTED THE MATT ER BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH A C OPY OF WHICH HAS BEEN FILED ON RECORD. THE LEARNED AR CONTENDED THAT SI NCE THE ADDITION ITSELF HAS NOT BEEN IN EXISTENCE PENALTY LEVIED ON SUCH NON-EXISTENT ADDITION DOES NOT HAVE LEGS TO STAND IN THE EYE OF LAW. 4. THE LEARNED DR ON THE OTHER HAND RELIED UPON T HE ORDER OF CIT(A). 5. AFTER HEARING THE LEARNED REPRESENTATIVES OF THE PARTIES WE FIND THAT IN THE QUANTUM APPEAL THE ITAT HAS SET ASIDE THE O RDER OF CIT(A) AND REMITTED THE MATTER BACK TO THE FILE OF AO WITH A D IRECTION TO DECIDE THE ISSUE AFRESH. WE ARE OF THE VIEW THAT THE ADDITION ITSELF IS NOT IN EXISTENCE LEVYING PENALTY ON SUCH NON-EXISTENT ADDITION DOES NOT ARISE AT ALL. ITA NO. 250/M/09 M/S ANAMIKA REAL ESTATE P. LTD. 3 THEREFORE WE SET ASIDE THE ORDER OF CIT(A) AND CAN CEL THE PENALTY OF RS. 2 10 00 000/- LEVIED BY THE AO U/S 271(1)(C) OF TH E ACT. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF OCTOBER 2010. SD/- SD/- (J. SUDHAKAR REDDY) (V. DURGA RAO) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 29 TH OCTOBER 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE A BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI. KV