Income Tax Appellate Tribunal - Mumbai
M/S Flemmingo Travel Retail ... vs Dcit - 9 (3) (2), Mumbai on 4 March, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "F", MUMBAI
BEFORE SHRI PRAMOD KUMAR (VP) AND SHRI RAM LAL NEGI (JM)
SA No. 105/MUM/2020
Arising out of ITA No. 1197/MUM/2020)
Assessment Year: 2014-15
M/s Flemingo Travel Retail The DCIT - 9(3)(2),
Limited (Formerly known as Room No. 418, 4th Floor,
DFS India Private Limited) Aayakar Bhavan, M.K. Road,
Chhatrapati Shivaji Vs. Mumbai - 400020
International Airport,
New Terminal 2,
CSI Airport, Sahar,
Mumbai - 400099
PAN : AACCD7412N
(Appellant) (Respondent)
Assessee by : Shri J.P. Bairagra (AR)
Revenue by : Mrs. Jothi Lakshmi Nayak (DR)
Date of Hearing: 28/02/2020
Date of Pronouncement: 04/03/2020
आदे श / O R D E R
PER RAM LAL NEGI, JM
The applicant/assessee has filed the present application for grant of stay on recovery of penalty amounting to Rs. 3,26,69,600/- levied by the AO u/s 271 (1) (c) of the Act on the basis of impugned order passed by the Ld. CIT(A) confirming the penalty order, which pertains to the assessment year 2014-15.
2. In this case, the AO passed assessment order u/s 143(3) of the Income Tax Act. (for short 'the Act') determining the total loss of the assessee at Rs. 3,09,35,310/- as against the loss of Rs. 12,70,50,647/- claimed by the assessee in return of income, under the normal provisions of the Act and book profit of Rs. 14,17,57,489/- . The AO made addition of Rs. 6,24,76,800/- by 2 SA No. 105/MUM/2020 Assessment Year: 2014-15 treating the bid development fees as capital expenditure, making disallowance of Rs. 23,55,545/- u/s 36(1) (3) and disallowance of Rs. 3,12,82,993/- u/s 40(a)(ia) of the Act. On the basis of the said additions, the AO initiated penalty proceedings and imposed penalty of Rs. 3,26,69,600/- u/s 271 (1) (c) of the Act. The Ld. CIT (A) confirmed the penalty levied by the AO. The assessee has challenged the impugned order before the Tribunal which is yet to be heard and decided.
3. In the light of the aforesaid facts, the Ld. counsel for the assessee submitted that the order passed by the Ld. CIT (A) is apparently incorrect and contrary to the evidence on record. The Ld. counsel further submitted that the additions in question were made under the normal provisions of the Act, however, since the tax payable u/s 115JB is more than the tax under the normal provisions of Act, the assessee has been assessed to tax under MAT provisions. The Ld. counsel further submitted that the appellant did not file appeal against the addition made by the AO because no additions were made to book profit u/s 115JB and the AO had accepted the return of income declared u/s 115JB. The Ld. counsel placing reliance on the decisions of the Hon'ble Delhi High Court in the case of CIT vs. Nalwa sons Investments Ltd. 327 ITR 543, submitted that when assessment was made on income computed u/s 115JB and tax has been paid on income so computed, the authorities below have wrongly imposed the penalty u/s 271(1)(c) of the Act. The Ld. counsel further submitted that since the assessee has a prima facie strong case in its favour, stay order may be passed and the department may be restrained from taking any coercive action for recovery of penalty.
4. On the other hand, the Ld. Departmental Representative (DR) opposed the application of the appellant/assessee contending that the concurrent findings of the authorities below are based on the settled principles of law and in accordance with the evidence on record. The Ld DR further submitted that, there is no merit in the contention of the Ld. counsel that the assessee has a prima facie strong case in its favour and the balance of convenience is also in favour of the assessee.
3 SA No. 105/MUM/2020Assessment Year: 2014-15
5. We have heard the rival submissions of the parties and gone through the relevant material on record in the light of the contentions of the parties. We notice that the assessee has challenged the impugned order basically on the ground that since the assessee and had paid tax under MAT as per the provisions of section 115JB, the Ld. CIT(A) ought to have set aside the findings of the Ld. CIT(A) and deleted the penalty levied u/s 271(1)(c) of the Act. The Ld. counsel further pointed out that the amendment made by substitution of Explanation 4 to sub-section 1 of section 271 is applicable prospectively w.e.f. 1.04.2016 and the assessee's case pertains to assessment year 2014-15.
6. Since, the issue raised by the assessee is debatable, we find a prima facie case in favour of the assessee. In our considered view, no prejudice is going to be caused to the revenue in case this application is allowed. Hence, we hold that this is a fit case for granting stay on recovery of outstanding demand.
7. Accordingly, we allow the present application for granting stay on recovery of outstanding demand for a period of 90 days from the date of this order or till the date of order of the Tribunal in assessee's appeals whichever is earlier. Hence, we direct the registry to post the appeal of the assessee for hearing on 24.03.2020.
In the result, application for grant of stay of demand filed by the applicant/assessee is allowed.
Order pronounced in the open court on 4th March, 2020 Sd/- Sd/-
(PRAMOD KUMAR) (RAM LAL NEGI)
VICE PRESIDENT JUDICIAL MEMBER
मुंबई Mumbai; दिन ुं क Dated 04/03/2020
Alindra, PS
आदे श प्रतितिति अग्रे तिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त(अपील) / The CIT(A)-
4. आयकर आयुक्त / CIT 4 SA No. 105/MUM/2020 Assessment Year: 2014-15
5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण, मुुं बई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शानु सार/ BY ORDER, सत्यावपि प्रवि //True Copy// उि/सहायक िं जीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण, मुुं बई / ITAT, Mumbai