Income Tax Appellate Tribunal - Panji
Acit 27(3), Navi Mumbai vs Rustom Ice & Cold Storage Co., Mumbai on 7 February, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "D", MUMBAI
BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND
SHRI N.K. PRADHAN, HON'BLE ACCOUNTANT MEMBER
ITA NO.5863/MUM/2015 (A.Y: 2009-10)
ACIT 27(3) v. M/s. Rustom Ice & Cold
4th Floor, Tower No. 6, Storage Co.,
Vashi Railway Station C/o. Ragi Ice & Cold Storage,
BPT Godown, 166 Sasoon
Building Complex,
Dock, Colaba
Vashi - 400 703 Mumbai 400 005
PAN NO: AAAFR 7587 D
(Appellant) (Respondent)
Assessee by : Shri Prakash Pandit
Department by : Shri Ram Tiwari
Date of Hearing : 26.12.2017
Date of Pronouncement : 07.02.2018
ORDER
PER C.N. PRASAD
1. This appeal is filed by the Revenue against the order of the Ld.CIT(A)-25, Mumbai dated 16.10.2015 for the Assessment Year 2009-10 in deleting the penalty levied u/s. 271(1)(c) of the Act.
2. At the outset, on a query from the Bench, as to the outcome of the appeal in quantum proceedings, Ld. Counsel for the assessee submitted that the Coordinate Bench restored the quantum appeal to the file of the 2 ITA NO.5863/MUM/2015 (A.Y: 2009-10) M/s. Rustom Ice & Cold Storage Co., Ld.CIT(A) in ITA.No.7368/Mum/2012 dated 03.03.2016. Learned Counsel for the assessee submitted that the quantum appeal is still pending before the Ld.CIT(A). On a query from the Bench as to why this issue should not be restored back to the file of the Ld.CIT(A) as the quantum appeal is pending, Ld. Counsel for the assessee, at the outset submitted that the initiation of the penalty proceedings itself is bad in law as the charge was not made clear in the notice issued u/s. 274 r.w.s. 271(1)(c) of the Act. Ld. Counsel for the assessee referring to the notice submitted that the charge is not known for initiation of penalty u/s. 271(1)(c) i.e. either for concealment of income or for furnishing of inaccurate particulars of the said income. Referring to the Assessment Order and subsequent show cause notice, Ld. Counsel for the assessee submitted that Assessing Officer in the Assessment Order mentioned the charge as furnishing inaccurate particulars of income, however, coming to the show cause notice and the penalty order it is mentioned that the assessee concealed income and furnished inaccurate particulars of income. Therefore, he submits that there is no specific charge for which the penalty was levied. Ld. Counsel for the assessee placed reliance on the following decisions in support of its contentions that if specific charge is not made in the notice by striking off the appropriate limb the initiation of penalty proceedings become null and void.
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ITA NO.5863/MUM/2015 (A.Y: 2009-10) M/s. Rustom Ice & Cold Storage Co.,
(a) CIT v. Shri Samson Perinchery, ITA.No. 1154 of 2014 (Bom.HC.)
(b) Shri. Samson Perinchery v. ACIT in ITA.No. 4625/Mum/2013.
(c) CIT v. Manjunath cotton & ginning Factory [359 ITR 565]
(d) CIT v. M/s. SSA'S Emerald Meadows S.C. C.C. No. 11485/2016.
(e) PCIT v. Smt. Baisetty Revathi [398 ITR 88]
(f) T. Ashok Pai v. CIT [292 ITR 11]
(g) M/s. Orbit enterprises v. ITO-15(2)(2) in ITA.No. 1596 & 1597/Mum/2014.
(h) Jehangir HC Jehangir v. ACIT in ITA.No. 1261/Mum/2011
(i) CIT v. Smt. Kaushalya and others [216 ITR 660]
(j) M/s. M. Waseeq Cafetaria v. ITO in ITA.No. 08/PUN/2014
3. Ld.DR however placing reliance on the decision of the Hon'ble Jurisdictional High Court in the case of CIT v. Smt. Kaushalya and others [216 ITR 660] submitted that defect in notice will not absolve assessee from the charge of concealment of particulars income. It is further submitted that it is specifically mentioned in the Assessment Order as well as the penalty order that the penalty was levied for furnishing of inaccurate particulars of income. Therefore, he submits that penalty proceedings were initiated properly. In any case the Ld.DR submits that since the quantum appeal is restored to the file of the Ld.CIT(A) this appeal also may be restored to Ld.CIT(A) for fresh adjudication.
4. We have heard the rival submissions, perused the orders of the authorities below and the case laws relied on, on the preliminary issue of the validity of initiation of penalty proceedings u/s. 271(1)(c) of the Act. In this case the appeal against quantum additions has been set-aside to the file of the Ld.CIT(A) by the Coordinate Bench in ITA.No.7368/Mum/2012 dated 03.03.2016 and the appeal is still pending before the Ld.CIT(A). On 4 ITA NO.5863/MUM/2015 (A.Y: 2009-10) M/s. Rustom Ice & Cold Storage Co., a perusal of the appeal filed by the assessee against the penalty order before the Ld.CIT(A), we find that the preliminary contentions now raised before us were never raised before the Ld.CIT(A). Though they are legal contentions we feel it appropriate to restore this appeal to the file of the Ld.CIT(A) who shall decide all the contentions of the assessee along with the quantum appeal pending before him. Thus, we restore this appeal to the file of the Ld.CIT(A) who shall dispose off the penalty appeal of the assessee along with the quantum appeal pending before him. The assessee is at liberty to raise all the contentions on preliminary issues before the Ld.CIT(A) including the very basis for levy of penalty and the Ld.CIT(A) shall dispose off those contentions in accordance with the law, after providing adequate opportunity of being heard to the assessee. Thus, this appeal is restored to the file of the Ld.CIT(A) for denovo adjudication in accordance with law.
5. In the result, appeal of the Revenue is allowed for statistical purpose.
Order pronounced in the open court on the 07th February, 2018.
Sd/- Sd/-
(N.K. PRADHAN) (C.N. PRASAD)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai / Dated 07/02/2018
Giridhar, SPS
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ITA NO.5863/MUM/2015 (A.Y: 2009-10)
M/s. Rustom Ice & Cold Storage Co.,
Copy of the Order forwarded to:
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT
5. DR, ITAT, Mumbai
6. Guard file.
//True Copy//
BY ORDER,
(Asstt. Registrar)
ITAT, Mum