ACIT CC 39, MUMBAI vs. GANRAYA LAND P.LTD, NAVI MUMBAI

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ITA 279/MUM/2014Status: DisposedITAT Mumbai30 October 2015AY 2009-103 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that since the addition forming the basis for the penalty was deleted, the penalty under section 271AAA could not survive. Therefore, the order of the Commissioner (Appeals) deleting the penalty was upheld.

What were the facts?

A search operation led to an addition of unexplained expenditure under section 69C. Based on this addition, a penalty was imposed under section 271AAA. However, the addition itself was later deleted by the Tribunal in the quantum appeal.

What were the issues?

Whether penalty under section 271AAA can be sustained when the underlying addition has been deleted. The validity of penalty imposition when the basis for the addition no longer exists.

Which sections of the Income-tax Act were involved?

Section 271AAA,Section 69C,Section 132

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “G” BENCH, MUMBAI

Before: SHRI SAKTIJIT DEY & SHRI ASHWANI TANEJA

For Appellant: Shri Ramesh Jain
For Respondent: Shri Anupama Shukla

This is an appeal by the Revenue against the order dated 25th October 2013, passed by the learned Commissioner (Appeals)-39, Mumbai, deleting penalty imposed under section 271AAA of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2009–10.

2.

We have heard the parties and perused the material on record. A search and seizure operation under section 132 of the Act was M/s. Ganraya Land Pvt. Ltd. 2 conducted in case of Jai Corp and Associates within the group including the assessee. On the basis of search and seizure operation, assessment proceedings in case of the assessee was initiated and in the course of assessment proceedings on the basis of documents found as a result of search, the Assessing Officer made addition of ` 1,58,22,000 as unexplained expenditure under section 69C of the Act. On the basis of the aforesaid addition, proceeding for imposition of penalty under section 271AAA was initiated alleging concealment of income and furnishing of inaccurate particulars of income. Ultimately, the Assessing Officer passed an order under section 271AAA of the Act imposing penalty of ` 15,82,200, being 10% of the undisclosed income. Being aggrieved of the penalty order, the assessee preferred an appeal before the first appellate authority.

3.

In the course of hearing of appeal before the first appellate authority, it was submitted by the assessee that the addition made under section 69C of the Act in the mean while has been deleted by the Tribunal while deciding assessee’s quantum appeal. The learned Commissioner (Appeals), after perusing the order of the Tribunal, deleting the addition made under section 69C of the Act in order dated 22nd March 2013, passed in ITA no.8237/Mum./2011 and others, deleted the penalty.

M/s. Ganraya Land Pvt. Ltd. 3 4. Undisputedly, in the present case, the addition made on the basis of which penalty was imposed under section 271AAA, has been deleted by the Tribunal while deciding assessee’s quantum appeal. Therefore, the very basis on which penalty was imposed, no more exist. That being the case, imposition of penalty under section 271AAA will also not survive.

5.

In the aforesaid view of the matter, we do not find any infirmity in the order of the learned Commissioner (Appeals) in cancelling the penalty under section 271AAA. Thus, the grounds raised by the Department are dismissed.

6.

In the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on 30.10.2015

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