SATYA PRAKASH SINGH,MUMBAI vs. DCIT 24(3), MUMBAI

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ITA 1890/MUM/2017Status: DisposedITAT Mumbai26 October 2018AY 2009-104 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal noted that the quantum appeal had been set aside to the AO for fresh assessment. Consequently, the penalty order was also set aside, with liberty to the AO to pass a fresh penalty order if necessary after the fresh assessment.

What were the facts?

The assessee failed to file its return of income for AY 2009-10, leading to a notice under section 148. The assessment was completed with additions, and penalty proceedings were initiated under section 271(1)(c). The CIT(A) confirmed the penalty.

What were the issues?

Whether the penalty under section 271(1)(c) can survive when the underlying assessment order has been set aside. The validity of the penalty in light of the subsequent setting aside of the quantum appeal.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 148,Section 143(3),Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES “G”, MUMBAI

Before: SHRI R.C. SHARMA (AM) & SHRI RAM LAL NEGI (JM)

For Appellant: Shri Yogesh Joijode (CA)
For Respondent: Shri Rajore Satishchandra (DR)
Hearing: 23/10/2018Pronounced: 26/10/2018

O R D E R

PER RAM LAL NEGI, JM

1.

This appeal has been filed by the assessee against the order dated 28.10.2016 passed by the Commissioner of Income Tax (Appeals)-42 (for short ‘the CIT(A), Mumbai, for the assessment year 2009-10, whereby the Ld. CIT(A) has dismissed the appeal filed by the assessee against the penalty order passed u/s 271 (1) (c) of the Income Tax Act, 1961 (for short the ‘Act’).

2.

In the present case, the assessee had not filed its return of income for the assessment year 2009-10. Accordingly, notice u/s 148 was issued by the AO on the basis of findings recorded in the assessment order for the assessment year 2007-08. In response to notice u/s 148, the assessee filed return of income declaring the total income of Rs. 78,21,414/-. The assessment was completed u/s 143 (3) read with section 147 of the Act determining the total income at Rs. 1,14,83,930/-. Accordingly penalty proceeding was initiated Assessment Year: 2009-10 u/s 271 (1)(c) of the Act for furnishing inaccurate particulars of income. In the first appeal, the Ld. CIT (A) confirmed the penalty levied by the AO u/s 271 (1) (c) of the Act.

3.

Aggrieved by the order of Ld. CIT (Appeals), the assessee has preferred this appeal before the Tribunal on the following effective ground:-

1. “The Honorable Commissioner of Income Tax Appeals has erred in confirming the penalty of Rs. 22,81,950/- u/s 271

(1) (c) of the Income Tax Act, 1961 without considering the facts and submission of the Appellant. It is submitted that appellant has not furnished any inaccurate particulars and penalty has been levied by the learned assessing officer on addition made in the assessment u/s 143 (3) r.w.s. 148 of the Income Tax Act, 1961 by treating the same as concealed Income. It is to note that appellant has claimed cost on the basis of Valuation Report of Regd. Valuer and therefore, considering the Apex Court’s decision in case of Dilip N Shroff, such penalty levied should be cancelled. Accordingly, it is prayed to your honour to delete the penalty levied by the learned assessing officer for the year under consideration.”

4.

The assessee has filed an application for condonation of delay of 19 days in filing the present appeal. The Ld. counsel for the assessee submitted that the assessee could not file the present appeal within the limitation period for the reason that the order of the Ld. CIT(A) had been misplaced by the concerned staff. Since, the delay is not intentional or due to inaction on the part of the assessee, the same may be condoned and the assessee may be allowed to argue the case on merits. On the other hand, the Ld. Departmental Representative (DR) opposed the submission made by the Ld. counsel on the ground that the assessee has failed to demonstrate that there was a reasonable cause which prevented the assessee from filing the present appeal. Assessment Year: 2009-10

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