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Income Tax Appellate Tribunal - Mumbai

Harbour Heights Co Op Hsg Socety Ltd , ... vs Assessee on 24 December, 2009

                  IN THE INCOME TAX APPELLATE TRIBUNAL
                       MUMBAI BENCHES "H" : MUMBAI

          BEFORE SHRI D.MANMOHAN, HON'BLE VICE PRESIDENT
                               AND
             SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER

                              ITA. No. 2988/Mum/2009
                              Assessment year 2003-2004

Harbour Heights 'A' Co-op. Housing
Society Limited, N.A. Sawant Marg,            vs.    I.T.O. 12 (2) (2)
Colaba                                               Mumbai.
Mumbai - 005
PAN AAAJH-0164-N
(Appellant)                                          (Respondent)


                          For appellant : Shri Homiyar Madan
                          For respondent : Shri S.K. Mohanty

                                        ORDER

PER D. MANMOHAN, V.P.

1. Penalty, of Rs.1,74,312/-, levied by the Assessing Officer under section 271 (1) (c) of the Act, having been confirmed by the learned CIT(A) assessee-society preferred this appeal.

2. At the time of hearing, learned Counsel submitted that the Registry has sent a defect memo pointing out that there is short payment of institution fees (Rs.5134/- to be paid in addition to Rs.500/- paid by the assessee). Placing reliance upon the decision of the Larger Bench of the ITAT in the case of Sri Bidyut Kumar Sett vs. ITO (2005) 272 ITR (AT) 75 (SB) and Dr. Ajith Kumar Pandey vs. ITAT (2009) 310 ITR 195 (Patna), learned Counsel submitted that in matters concerning levy of penalty, only Rs.500/- is payable towards institution fees and hence appeal is in order. Under these circumstances, we admit the appeal.

3. Penalty was levied primarily because of the additions made on account of certain receipts from the Members of Co-operative Society. Learned Counsel placed 2 before us a copy of the Order of the ITAT 'H' Bench, Mumbai (ITA. No. 784/Mum/2008 dated 24-12-2009) to submit that the addition was set aside by the ITAT and hence penalty levied, consequent to the addition made in the assessment order, does not survive.

4. Learned DR fairly admitted that the issue stands covered by the decision of the ITAT (supra).

5. Under these circumstances, we cancel the penalty levied by the Assessing Officer.

6. In the result, appeal filed by the assessee is allowed, as pronounced in the open Court.

  Sd/-                                                               Sd/-
 (RAJENDRA SINGH)                                                   (D.MANMOHAN)
ACCOUNTANT MEMBER                                                  VICE PRESIDENT

Mumbai, Date 09th March, 2010.

VBP/-

Copy to

1. Harbour Heights 'A' Co-op. Housing Society Limited, N.A. Sawant Marg, Colaba Mumbai - 005 PAN AAAJH-0164-N

2. ITO 12 (2) (2), Mumbai.

4. CIT(A)-XII, Mumbai.

5 CIT-XII,Mumbai.

6. D.R. 'H' Bench, Mumbai.

7. Guard File.

(True copy) By Order Asst. Registrar, ITAT, Mumbai Benches MUMBAI.

SNo                                                      Date         Initials
1     Draft dictated on                                  02-03-2010              Sr.P.S
2.    Draft Placed before author                         02-03-2010              Sr.P.S
3.    Draft proposed & placed before the Second Member                           V.P.
4.    Draft discussed/approved by Second Member                                  A.M
5.    Approved Draft comes to the Sr.PS/PS                                       Sr.P.S
6.    Kept for pronouncement on                                                  Sr.P.S
7.    File sent to the Bench Clerk                                               Sr.P.S

8. Date on which file goes to the Head Clerk

9. Date of Dispatch of Order