R. P. Infrastructure Pvt. Ltd., Mumbai vs Assessee
- CitationI.T.A. No. 2894 /Mum/2013
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following point: where the assessee contends that no penalty under section 271(1)(c) can be levied on additions or disallowances made while computing income under the normal provisions because tax is payable on income assessed under section 115JB, the first appellate authority must consider that contention, and the Tribunal will not decide it in the first instance where the lower authorities have not considered it. The Tribunal also holds that, before the merits are reached, the first appellate authority must first decide whether the appeal before it was time-barred, that question being logically prior to the penalty issue.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No. 2894 /Mum/2013 ( नधा रण वष / Assessment Year : 2008-09
R.P. Infrastructure Pvt. बनाम/ Dy. C.I.T. - 9(3), Ltd., 2 n d floor, Vs. C-116, Mayur Apartment, Aayakar Bhavan, Sodawala Cross Lane, Mumbai-400 020. Borivali (W), Mumbai - 400 092. थायी ले खा सं . /PAN : AACCR 5405P (अपीलाथ /Appellant) .. ( यथ / Respondent)
Appellant by Dr. K. Shivaram & Shri Rahul K. Hakani Respondent by : Shri Love Kumar (D.R.)
ु वाई क तार ख / Date of Hearing सन : 26-05-2015 घोषणा क तार ख /Date of Pronouncement : 10-06-2015 [
आदे श / O R D E R PER R.C. SHARMA, A.M. :
This is an appeal filed by the assessee is directed against the order passed by the ld. CIT(A) -20, Mumbai dated 13-02-2013 for the A.Y. 2008-09 in the matter of penalty imposed u/s 271(1)(c) of the Income Tax Act, 1961.
2. During the course of hearing before us, the assessee filed additional ground to the effect that penalty u/s. 271(l)(c) cannot be levied on additions or disallowances made while computing income under normal provisions when the tax is payable on income assessed u/s. 115JB. In the facts of the present case tax is payable on income u/s. 115JB in view of the order passed u/s. 154 dated 26/04/2012. Hence, no penalty can be levied u/s. 271(1)(c).
2 ITA 2894/M/13
In support of the contention, the ld. Counsel for the assessee placed reliance on the Apex Court decision in the case of CIT vs, Nalwa Sons Investments Ltd. SLP (Civil) No. 18564 of 2011 dt. 4/5/2012 wherein SLP filed against the decision of the Delhi High Court Reported in (2010) 327 ITR 543 was dismissed.
3. We have gone through the orders of authorities below and found that the ld. CIT(A) has confirmed the penalty levied by the A.O. u/s 271(1)(c) of the Act on the plea that there was deliberate wrong claim of brought forward losses and loss on sale of crushing machine. However, in para 3.1 of his order, the ld. CIT(A) observed that appeal was time barred but no clarification from the assessee with regard to delay in filing the appeal was filed. From the order of the lower authorities, we found that the ld. CIT(A) has not considered the imposition of penalty in case the income is assessable u/s 115JB of the Act.
4. In the interest of justice, we restore this appeal back to the file of ld. CIT(A) for first deciding the issue regarding delay in filing the appeal before him and to consider the additional ground raised by the assessee to the effect that on the income assessed u/s 115JB of the Act, no penalty is imposable u/s 271(1)(c) of the Act on the addition/disallowance so made by the A.O. We direct accordingly.
5. In the result, appeal of the assessee is allowed in part for statistical purpose.
Order pronounced in the open court on 10th June, 2015.
आदे श क घोषणा खल ु े #यायालय म% &दनांकः 10-06-2015. को क गई ।
Sd/- sd/- (D. MANMOHAN) (R.C. SHARMA) VICE PRESIDENT ACCOUNTANT MEMBER मंब ु ई Mumbai; &दनांक Dated 10-06-2015 3 ITA 2894/M/13
व.5न.स./ RK , Sr. PS
आदे श क! " त$ल%प अ&े%षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु6त(अपील) / The CIT(A) -20, Mumbai
4. आयकर आयु6त / CIT ---9, Mumbai
5. 9वभागीय 5त5न;ध, आयकर अपील य अ;धकरण, मंब ु ई / DR, ITAT, Mumbai D Bench
6. गाड? फाईल / Guard file.
ु ार/ BY ORDER, आदे शानस
स या9पत 5त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai
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