KRISHANLAL M. OBHAN HUF,MUMBAI vs. ITO,WD 21(2)(3), MUMBAI

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ITA 2876/MUM/2017Status: DisposedITAT Mumbai04 September 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 condoned the delay in filing the appeal. Subsequently, it held that since the additions made in the assessment order were deleted, the penalty arising from it was not sustainable and thus dropped the penalty.

What were the facts?

The assessee filed an appeal before the ITAT with a delay of 323 days. The penalty in question arose from an assessment order, which had already been deleted by the ITAT in a prior quantum appeal.

What were the issues?

Whether the penalty is sustainable when the underlying additions have been deleted. Whether the delay in filing the appeal should be condoned.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

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Income Tax Appellate Tribunal, “H”

Before: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI N. K. PRADHAN, AM

For Appellant: Ms. Aarti Sathe, AR, Shri Manoj Kumar, DR सुनवाईकीतारीख/
For Respondent: Shri Manoj Kumar

Krishanlal M. Obhan HUF ITO, WD 21(2)(3) Plot No. 57, Jai Mahal Flat Mumbai बिधम/ No. 22, OZA Road, Opp- Pin- Mahindra Kotak Bank, Jain Vs. Society, Sion (west) Mumbai-400022 स्थायीलेखासं./जीआइआरसं./ PAN/GIR No. AABHK4133R (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Ms. Aarti Sathe, AR प्रत्यथीकीओरसे/Respondent by : Shri Manoj Kumar Singh, DR सुनवाईकीतारीख/ : 30/08/2018 Date of Hearing घोषणाकीतारीख / : 04.09.2018 Date of Pronouncement आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

1.

This appeal filed by the assessee is against the order of Ld. CIT(A)-38, Mumbai dated 31.03.16 upholding the imposition of penalty.

Krishanlal M. Obhan HUF, 2. At the very outset, Ld. AR appearing on behalf of the assessee drawn our attention towards application dated 21.04.17 which relates to condonation of delay in filing appeal before ITAT. Ld. AR submitted that the present appeal could not be filed within time because of the reasons mentioned in affidavit and thus there was a delay of 323 days in filing the present appeal.

3.

On the other hand, Ld. DR requested for dismissal of the said application.

4.

We have heard the counsels for both the parties on the application for seeking condonation of delay and while taking into consideration the contents of application filed by the assessee, supporting affidavit, whereby the assessee has mentioned the reasons in detail for not filing the appeal within limitation. Apart from that Ld. AR has also submitted that the additions made by the AO has also been deleted by ITAT and therefore even otherwise the penalty proceedings are likely to be dropped.

Krishanlal M. Obhan HUF, Therefore keeping in view the reasons mentioned in the affidavit and the peculiar facts of the present case, as the additions made by AO have already been deleted by ITAT, therefore in such circumstances, following the principles laid down by Hon’ble Supreme Court in case of “Land Acquisition Collector Vrs. MstKitzi, AIR 1987 S.C. 1353/(1987) 167 ITR 471 (SC), we condone the delay of 323 days in filing the appeal. Resultantly, this application is allowed and appeal is admitted to be heard on merits.

5.

The Ld. AR drawn our attention to the order of Hon’ble ITAT in quantum appeal bearing for AY 2009-10 titled Krishanlal M. Obhan HUF Vrs. ITO dated 05.06.2017.

6.

On the perusal of para no. 6 of the said order of Hon’ble ITAT, the quantum has already been deleted by allowing the ground of appeal in favour of the assessee. The penalty has borne out of assessment order and since the quantum has already been deleted, therefore the penalty arising out of the said order is not Krishanlal M. Obhan HUF, sustainable in the eyes of law. In view of the above facts, circumstances and discussion, we drop the penalty while setting aside the order of Ld. CIT(A). It is ordered accordingly.

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