ASST CIT CEN CIR 29, MUMBAI vs. SUNIL MANTRI REALTORS LTD, MUMBAI

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ITA 5159/MUM/2014Status: DisposedITAT Mumbai10 April 2018AY 2010-112 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that since the quantum appeal had been restored back to the AO, the appeal filed by the AO against the penalty order would not survive.

What were the facts?

The Assessing Officer (AO) made a disallowance of Rs 39.96 lacs on profit from sale of shares and levied penalty. The assessee appealed to the CIT(A), who allowed the appeal. Subsequently, the Tribunal restored the issue of taxability of capital gains and the disallowance to the AO for fresh adjudication.

What were the issues?

Whether the appeal filed by the AO against a penalty order survives when the underlying addition has been remanded back to the AO for fresh adjudication.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 274,Section 271(1)(c),Section 254(1)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(3)Show list

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Order u/s.254(1)of the Income-tax Act,1961(Act) अनुसार PER RAJENDRA, AM- लेखा सद"य सद"य राजे"" राजे"" केकेकेके अनुसार लेखा लेखा लेखा सद"य सद"य राजे"" राजे"" अनुसार अनुसार Challenging the order dated 20th May 2014 of CIT(A)-40, Mumbai, the Assessing officer (AO) has filed the present appeal. Assessee- company had filed its return of income on 30/09/2010, declaring total income of Rs 46,144/-. The AO completed the assessment, on 30th Jan 2013, under section 143(3) of the Act, determining its income at Rs 40.42 lacs. While completing the assessment,he made disallowance of Rs 39.96 lacs with regard to profit on sale of shares. He issued a notice under section 274 r.w.s 271(1)(c) of the Act for filing inaccurate particulars of income.

1.

2.Vide his order dated 27.08.2013, he levied penalty of Rs 12.34 lacs. Aggrieved by the order of the AO the assessee preferred appeal before the First Appellate Authority (FAA) and made detailed submissions. After considering the available material and relying upon the judgment of Reliance Petro Chemicals Product Limited (322 ITR 158), Sherwani Hospitalities Limited (261 CTR 449), Bacardy Martini India Limited 288 ITR 585), he allowed the appeal of the assessee.

3.

In the meanwhile, the assessee challenged the additions in the quantum appeal. Vide its order dated 30th September 2015, the Tribunal (ITA 4216/Mum/2013) restored back issue of taxability of Long Term Capital gains on listed equity shares to the file of the AO for fresh adjudication. The issue of disallowance of business expenditure of Rs 39.96 lacs was also remanded to the file of the AO.

4.During the course of hearing before us the Departmental Representative (DR) and the Authorised Representative(AR) stated that after the order of the Tribunal dated 30/09/2015, the appeal filed by the AO would not survive, as the quantum appeal has been restored back to the file of the AO. Considering the above, we dismiss the appeal filed by the AO.

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