Income Tax Appellate Tribunal - Mumbai
Shreelekha Nandan Damani, Mumbai vs Dcit (Osd-I) Cir-7, Mumbai on 12 July, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI
BEFORE SHRI R.C. SHARMA, AM AND SHRI AMARJIT SINGH, JM
आयकर अपील सं / I.T.A. No.5005/Mum/2015
(निर्धारण वर्ा / Assessment Year: 2007-08)
Shreelekha Nandan Damani बिधम/ DCIT(OSD-1) CIR-7
Vs. Aayakar Bhavan, M.K. Marg
11 Damani House, Cuffe
Parade, Mumbai - 400005 Mumbai Pin:400020
स्थायी लेखा सं ./जीआइआर सं ./PAN/GIR No. : AECPD7468K
(अपीलाथी /Appellant) .. (प्रत्यथी / Respondent)
Assessee by: Shri Anil Lohia
Revenue by: Shri Ram Tiwari, DR
सुनवाई की तारीख / Date of Hearing: 04.07.2017
घोषणा की तारीख /Date of Pronouncement: 12.07.2017
आदे श / O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 07.07.2015 passed by the Commissioner of Income Tax (Appeals)-52, Mumbai [hereinafter referred to as the "CIT(A)"] relevant to the A.Y.2007-
08.
2. The assessee has raised the following grounds:-
"1. On the facts and in the circumstances of the case and in law, the Hon'ble Commissioner of Income Tax-(Appeals)-52 Mumbai erred in upholding the levy of penalty u/s 271(1)(c). The substantive appeal order u/s 143(3) has been annulled by the ITAT, Mumbai vide order dated 19.08.2015 and the assessees appeal has been allowed.
Shreelekha Nandan Damani
2. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Hon'ble. Commiossioner of Income Tax-(Appeals)-52, Mumbai erred in upholding the levy of penalty u.s. 271(1)(c) without considering the fact that the addition was made on a debatable issue. No penalty can be levied for additions made on such debatable points of law.
3. The above grounds are independent and without prejudice to one another.
4. Your appellant craves to add, alter, amend or delete any of the grounds of appeal."
3. The brief facts of the case are that the assessee has filed the return of income for the A.Y. 2007.08. assessing the total income to the tune of Rs.4,52,391/- on 28.07.2007. A search and seizure action u/s 132 of the Act was carried out on 16.10.2010 and on subsequent dates on Simplex Group of Companies and its Associates. The assessment proceeding was initiated by issuance of notice u/s 153A of the I.T. Act, 1961. In pursuance of notice, the assessee filed the return of income declaring total income to the tune of Rs.1,04,26,373/-. Notice u/s 143(2) was issued and served upon the assessee. The assessee has claimed rent paid to Tobaccowala an amount of Rs.60,23,2710/- and the said rent was claimed at business expenditure. On verification, it was found that the assessee was having her residential premises at 11, Damani House Cuffe Parade, Mumbai. The said plot was subject to the redevelopment. Therefore, assessee and her husband Shri Nandan Damani entered into an agreement dated 31.08.2001 and the land was converted into stock-in-trade therefore the old Damani house was demolished for construction of new building. The assessee and her husband paid sum of Rs.1,20,46,540/- for alternate accommodation. Since, the Assessing Officer was of the view that the assessee's shares to the tune of Rs.60,23,270/- was for her own personal expenditure. Therefore, the 2 Shreelekha Nandan Damani expenses was not liable to be allowed hence, the amount to the tune of Rs.60.23.270/- was added to the income of the assessee. Penalty proceeding was initiated and penalty to the tune of Rs.20,60,444 was levied which was confirmed by the CIT(A) therefore the assessee filed the present appeal before us.
ISSUE NO.1& 2:-
4. We have heard the argument advanced by the Ld. representative of the parties and perused the record. The Ld. representative of the assessee has argued that the Hon'ble ITAT Mumbai Benches has deleted the quantum by the virtue of vide order dated 19.08.2015 in ITA. No.4061/M/2012 therefore in the said circumstances no penalty is liable to be levied. However, on the other hand the ld. representative of the department has refuted said contention. Order dated 19.08.2012 in ITA. No. 4061/M/2012 in the assessee's own case for the A.Y. 2007-08 perused in which the assessment order made u/s 143(3) of the read with Section 153A has been annulled. Since, the very base to impose the penalty has been deleted by the Hon'ble ITAT Mumbai Benches in ITA.No.4061/M/2012 dated 19.08.2012 assessee's own case therefore in the said circumstances the penalty is not liable to be sustainable in view of eye of law. Hence, we delete the penalty and allowed the appeal of the assessee.
5. In the result, the appeal filed by the assessee is hereby ordered to be Allowed.
3Shreelekha Nandan Damani Order pronounced in the open court on 12.07.2017.
Sd/- Sd/-
(R.C. SHARMA) (AMARJIT SINGH)
लेखा सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER
मुंबई Mumbai; ददनां क Dated : 12.07.2017
V.P. SINGH
आदे श की प्रनिनिनि अग्रेनर्ि/Copy of the Order forwarded to :
1. अपीलाथी / The Appellant
2. प्रत्यथी / The Respondent.
3. आयकर आयु क्त(अपील) / The CIT(A)-
4. आयकर आयु क्त / CIT
5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुंबई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीिीि अनर्करण, मुंबई / ITAT, Mumbai 4