GARDEN VIEW REALTOR P.LTD,MUMBAI vs. ITO 3(1)(4), MUMBAI

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ITA 7059/MUM/2013Status: DisposedITAT Mumbai15 January 2016AY 2004-054 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 held that since the quantum appeal concerning the disallowance of loss on sale of shares was remitted back to the Assessing Officer for fresh adjudication, the penalty imposed on that disallowance cannot survive.

What were the facts?

The assessee's appeal against a penalty under section 271(1)(c) for AY 2004-05 was filed with a delay. The penalty was imposed on a disallowance of loss on sale of shares.

What were the issues?

Whether a penalty under section 271(1)(c) can be sustained when the underlying addition or disallowance has been remitted back to the Assessing Officer for fresh assessment.

Which sections of the Income-tax Act were involved?

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

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “G” BENCH, MUMBAI

Before: SHRI SAKTIJIT DEY & SHRI N.K. BILLAIYA

For Appellant: Shri Shrikant Namdeo
For Respondent: Shri Narayan Atal, Shri Shrikant Namdeo

Instant appeal by the assessee is directed against the order dated 29th August 2013, of learned Commissioner (Appeals)–7, Mumbai, confirming penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2004–05.

2.

There is a delay of eight days in filing the appeal. After perusing the petition filed by the assessee seeking condonation of delay along

M/s. Garden View Realtor Pvt. Ltd. 2 with affidavit, we are satisfied that appeal was filed belatedly due to reasonable cause. We therefore, condone the delay and admit the appeal for hearing on merit.

3.

At the outset, learned Counsel for the assessee submitted the issue on the basis of which penalty under section 271(1)(c) was imposed, in the meanwhile, has been restored back by the Tribunal to Assessing Officer for deciding afresh, while deciding assessee’s quantum appeal. He, therefore, submitted, the penalty imposed under section 271(1)(c) cannot survive.

4.

The learned Departmental Representative has not controverted aforesaid factual position.

5.

We have considered the submissions of the parties and perused the material available on record. Assessment in case of the assessee for the impugned assessment year was completed under section 143(3) r/w section 147 of the Act on 17th November 2008, making certain additions / disallowances, one amongst them being deduction claimed of ` 8,82,000, on account of loss on sale of shares. The said disallowance was also confirmed by the first appellate authority against which assessee preferred an appeal before the Tribunal. During the pendency of assessee’s appeal before the Tribunal, the Assessing Officer imposed penalty under section 271(1)(c) of the Act

M/s. Garden View Realtor Pvt. Ltd. 3 on disallowance of ` 8,82,000, claimed as loss on sale of shares. The first appellate authority also upheld imposition of penalty. However, in the meanwhile, assessee’s appeal on quantum has been disposed off by the Tribunal vide order dated 3rd December 2015, in Mum./2012. Perusal of the order passed by the Tribunal reveals that issue relating to disallowance of loss on sale of shares specifically raised by the assessee in ground no.4, has been remitted back to the Assessing Officer for deciding afresh with other issues. That being the case, penalty imposed under section 271(1)(c) on account of disallowance of claim of loss on shares cannot survive. In the aforesaid view of the matter, we set aside the impugned order of the learned Commissioner (Appeals) confirming imposition of penalty. However, we make it clear, it will be open for the Assessing Officer to initiate proceedings for imposition of penalty under section 271(1)(c) of the Act, if warranted, after completion of assessment in accordance with directions of the Tribunal.

6.

In the result, assessee’s appeal is allowed. Order pronounced in the open Court on 05.01.2016

Sd/- Sd/- SAKTIJIT DEY N.K. BILLAIYA ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 05.01.2016

M/s. Garden View Realtor Pvt. Ltd. 4

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