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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI RAJENDRA & SHRI SAKTIJIT DEY
आदेश / ORDER शक्तिजीि दे, न्याययक सदस्य के द्वारा / PER SAKTIJIT DEY, J.M.
The instant appeal preferred by the Revenue is directed against 13th the order dated August 2013, passed by the learned
The Navyug CHS Limited 2 Commissioner (Appeals)–32, Mumbai, deleting the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 (for short "the Act"), for the assessment year 2006–07.
When the case was called for hearing, none appeared on behalf of the respondent assessee. Considering the nature of dispute, we proceed to dispose of the present appeal ex–parte qua the assessee after hearing the learned Departmental Representative and on the basis of material available on record.
Briefly the facts are, the assessee is a Co–operative Housing Society constituted by the plot owners. For the assessment year under consideration, the assessee filed its return of income on 29th September 2006, declaring total income of ` 6,57,196. The assessment in the case of assessee was completed under section 143(3) of the Act vide order dated 15th December 2008, by disallowing assessee’s claim for exemption on the principles of mutuality in respect of transfer fee receipt from members to the tune of ` 8,47,000 and TDR premium receipt of ` 12,07,384. Further, the Assessing Officer also disallowed the expenditure claimed against income from other sources by holding that such expenditures were not related to receipt of transfer fee. As stated by the Assessing Officer in the penalty order, though the assessee challenged the addition of `
The Navyug CHS Limited 3 8,40,000 and ` 12,07,384, which were claimed exempt by the assessee but the learned Commissioner (Appeals) while deciding assessee’s appeal challenging these additions upheld the order of the Assessing Officer. On the basis of the additions made by the Assessing Officer as aforesaid proceeding for imposition of penalty under section 271(1)(c) of the Act, alleging furnishing of incorrect particulars of income was initiated. Though, the assessee objected to the initiation of proceedings for imposition of penalty, but, the Assessing Officer rejecting the explanation of the assessee, imposed penalty of ` 6,33,049, being 100% of the tax sought to be evaded by holding that the assessee has concealed the particulars of its income by not offering the transfer fee and TDR premium receipts to tax. Being aggrieved of the penalty order passed by the Assessing Officer, the assessee preferred appeal before the first appellate authority.
Before the learned Commissioner (Appeals), it was submitted by the assessee that in respect of similar additions for assessment year 2004–05, the assessee’s appeal was allowed by the learned Commissioner (Appeals) and the Department’s appeal against such order of the learned Commissioner (Appeals) was dismissed by the Tribunal in ITA no.3399/Mum./2010. The learned Commissioner (Appeals), after considering the aforesaid aspect, opined that when the The Navyug CHS Limited 4 first appellate authority in two different assessment year have expressed two different opinions, it proves the fact that more than one view is possible on the issue relating to taxability of transfer fee and TDR premium receipt. Further, upon considering the fact that the Tribunal for the assessment year 2004–05, has decided the issue in favour of the assessee, the learned Commissioner (Appeals) proceeded to delete the penalty imposed under section 271(1)(c).
Having heard the submissions of the learned Departmental Representative and perused the material on record, we are of the view that the impugned order passed by the learned Commissioner (Appeals) in deleting the penalty imposed under section 271(1)(c) deserves to be confirmed. As could be seen, the additions made of transfer fee and TDR premium receipt in the assessment year 2004– 05, was deleted not only by the first appellate authority but the decision of the first appellate authority was also upheld by the Tribunal while dismissing Revenue’s appeal. That being the case, the penalty imposed under section 271(1)(c) of the Act for the impugned assessment year cannot survive only because the additions made by the Assessing Officer were confirmed by the learned Commissioner (Appeals) in the impugned assessment year. That being the case, we
The Navyug CHS Limited 5 uphold the order passed by the learned Commissioner (Appeals) by dismissing the ground raised by the Revenue.
In the result, Revenue’s appeal stands dismissed. Order pronounced in the open Court on 09.10.2015