JAYESH K SAMAPT,MUMBAI vs. DCIT CC (46), MUMBAI

ITA/924/Mum/2015-AY.2005-06: 2.Effective ground of appeal is levy of penalty.The AO,while deciding the issue of levy of penalty u/s.271(1)(c),held that the assessee had furnished inaccurate particulars and thus had evaded tax.He levied a penalty of Rs.5 lakhs,vide his order 22.03.2013.The assessee preferred an appeal before the First Appellate Authority(FAA),who confirmed the order of the AO. 3.It was brought to our notice that in assessee’s own case the Tribunal had,vide order dated 28/ 10/2016(ITA.s.1000-1003&1005/Mum/2013-AY.s.2005-06 to 2007-08 & 2010-11)had partly allowed the quantum appeal filed by the assessee and that for the AY.2004-05& 2009-10( ITA.s/ 924&928/Mum/2015,dtd.28.10.2016) penalty levied u/s.271(1)(c) of the Act was also cancelled.

In the result, the appeals filed by the assessee for the Assessment Years 2005 – 06 to 2007-08 and 2010 – 11 are allowed for statistical purposes” 4.1.The Tribunal,deleting the penalty for the AY.2004-05 and 2009-10, referred to the case of Alpha Chemical Trade Agencies Private Limited(ITA/698 & 709/Mumbai/2015)i.e. on the group case and reproduced the order of that case as follow: “ XXXXXX 6.We have carefully considered the rival submissions. It is abundantly clear that modus operandi and the nature of income on by the assessee, which has been subjected to penal provisions of section 271(1)(c) of the act in the instant case, are similar to those considered by the Co-ordinate Bench in the case of Mihir Agencies Private Ltd.,& Mukesh Choksi(supra). It is also abundantly clear that in the present case also the variation in quantum of income assessable between assessee and the revenue is on account of estimation only, and identical situation which has been considered in the aforesaid precedents, which have been rendered in similar circumstances, we hereby set aside the order of the CIT (A) and direct the Assessing Officer to delete the penalty imposed under section 271(1)(c) of the Act. Thus, on this aspect, assessee succeeds.” 7.Respectfully following the aforesaid decision, we delete the penalty levied under section 271(1)(c) in these cases, as the facts and circumstances being identical, as the commission income assessable in the hands of the assessee has been on estimate basis, no penalty is attracted on the additions, disallowance is made on estimate basis.” Respectfully following the said order, we delete the penalty levied under section 271(1)(c) of the Act in these cases also.” Following the above orders of the Tribunal,we decide the effective ground of appeal in favour of the assessee.As the matter has been remanded back to the file of the AO, in the quantum appea,l for fresh adjudication,so,the penalty would not survive for the year under appeal.