DCIT CENT. CIR. 4(1), MUMBAI vs. OBEROI CONSTRUCTIONS, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI G. S. PANNU, AM AND SHRI AMARJIT SINGH, JM आयकर अपील सं/ I.T.A. No.5998/Mum/2016 (निर्धारण वर्ा / Assessment Year: 2011-12) DCIT Central Circle-4(1), बिधम/ M/s. Oberoi Constructions, Mumbai R. No. 1916, 19th Commerz, 3rd Floor, Vs. Floor, Air India Building, International Business Park, Nariman Point, Mumbai- Oberoi Garden City, Off. 400021. W.E. Highway, Goregaon (E), Mumbai-400063. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAACO1805E (अपीलाथी /Appellant) (प्रत्यथी / Respondent) .. Revenue by: Shri Ram Tiwari (AR) Assessee by: Shri Saumil Daru सुनवाई की तारीख / Date of Hearing: 08.05.2018 घोषणा की तारीख /Date of Pronouncement: 31.07.2018 आदेश / O R D E R PER AMARJIT SINGH, JM: The revenue has filed the present appeal against the order dated 22.07.2016 passed by the Commissioner of Income Tax (Appeals) -52, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2011- 12. 2. The revenue has raised the following grounds: - "1. "Whether on the facts and in the circumstances of the case and in law, the Ld. CLT1A} has erred in deleting penalty u/s 27l(l)(c) on account of penalty payment made to BMC for unauthorized construction and fine paid to Custom Authorities for importing marbles without

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License as it is not allowable as per explanation to Section 37(1) of the Income Tax Act, 1961 and penalty is leviable for producing inaccurate information and concealment of income?" 2. "The Appellant craves to leave, to add, to amend and / or to alter any of the ground of appeal, if need be." The Appellant, therefore, prays that on the ground stated above, the order of the Ld CIT(A)-52, Mumbai may be set aside grid that of the Assessing Officer restored.” 3. The present appeal is time barred for 20 days which is not so delayed therefore, on seeing the circumstances that the matter of controversy is required to be decided on merits, therefore, we condone the delay. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. At the very outset, the Ld. Representative of the assessee has argued that the CIT(A) has deleted the penalty on merits by relying upon the law settled by the different authorities of law, therefore, there is no need to interfere with the order of the CIT(A) in accordance with law. It is also argued that the addition on the basis of which the penalty has been levied, has been deleted by Hon’ble ITAT in the assessee’s own case for the A.Y. 2012-13 in ITA. No.6694/M/2014 dated 19.05.2017, therefore, the penalty has no leg to stand hence the CIT(A) has rightly deleted the penalty. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. On appraisal of the order, we noticed that the penalty has been levied by the AO upon the amount of Rs.32,66,990/- paid as penalty to the BMC Mumbai. Undoubtedly, the CIT(A) has deleted the penalty on the basis of the law settled in Price Waterhouse Coopers Pvt. Ltd. Vs. CIT- (2012) 348 ITR 0306 (SC), Kanbay Software India Pvt. Ltd. (122 TTJ 721) & CIT Vs. Reliance Petroproducts Pvt. Ltd.(supra), CIT Vs.Caplin Point Laboratories Ltd. (293 ITR 254), CIT Vs. Harshvardhan Chemicals & Mineral Ltd. (259

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ITR 212 (2003), CIT Vs. S.M. Construction (ITA. No. 412 of 2013 etc. Anyhow, at the stage, there is no need to interfere in the finding of the CIT(A) because the addition on which the penalty has been levied, has been deleted by Hon’ble ITAT by virtue of order dated 19.05.2017 in ITA. No.6694/M/2014 for the A.Y.2011-12. Since the addition has been deleted, therefore, in the said circumstances, the penalty has no leg to stand hence the penalty has been rightly deleted by the CIT(A). Accordingly, we confirm the order of the CIT(A) on this issue and dismissed the appeal of the revenue.