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TMI Blog2013 (12) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... f income in earlier years - Decided in favour of assessee. - ITA No. 1184/Mum/2012 - - - Dated:- 23-10-2013 - Sh. I. P. Bansal And Rajendra, JJ. For the Appellant : Shri J. D. Mistri For the Respondent : Shri D. Prabhakar Reddy ORDER Per Rajendra, AM Challenging the order dated 08-12-2011 of the CIT(A)-21, Mumbai, Assessee has raised following Grounds of appeal: 1. On the facts and in the circumstances of the case and in law the Commissioner of Income tax (Appeals)-23, Mumbai erred in dismissing the ground that the relevant assessment order u/s 143(3) r. w. s 254 on the basis of which the penalty was levied on 25-8-20 10 was barred by limitation as per the proviso to section 275 (1) (a) as the CIT (A)'s order regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me from Business' under the head 'Income from House Property'. The assessing officer in his order u/s 143(3) r. w. s. 254 had made an addition of Rs. 26, 94, 380/-to the annual value of the property. This was the only issue before him while initiating penalty proceedings. 5. On the facts and in the circumstances of the case and in law the Commissioner of Income tax (Appeals)-23, Mumbai erred in not deciding the ground regarding assessing officer levying penalty without considering your appellants reply dated 25. 06. 2002. 6. On the facts and in the circumstances of the case and in law the Commissioner of Income tax (Appeals)-23, Mumbai erred in confirming the levy of penalty in respect of an addition which was highly disputable. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO and the assessee before the Tribunal. On 31. 01. 2006, Tribunal following its order for the AY 1998-99, held that rental income received by the assessee was required to be assessed under the head IFHP. In respect of another issue as to whether IFHP should be assessed at Rs. 21. 44 lacs or at 95. 4 lacs, Tribunal set aside the issue to the file of the AO to determine the ALV and to give the finding as to whether the property income was to be assessed u/s. 23(1)(a) or 23(1)(b) of the Act. 2. a. As per the direction of the Tribunal, AO passed order u/s. 143(3) r. w. s. 254 of the Act and determined the IFHP at Rs. 36. 28 lac{Rs. 26. 94 u/s. 23(1)(a)+21. 44 lacs u/s. 23(1)(b)}. He allowed 1/4threpairs while calculating the house-proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e head of income, that it did not file any appeal before the High Court, that there was no concealment of income, that no inaccurate particulars were filed, that fact of receiving of rental income was apparent from the return of income filed, that the details of let out property at various places was disclosed to the AO, that during the second round of appeal the limited issue was determining the income u/s. 23(1)(a)/23(1)(b) of the Act, that issue of head of the rental income was not before the AO, that AO should not have levied the penalty u/s. 271(1)(c) of the Act. He relied upon the order of the Reliance Petro Chemicals Ltd. (328 ITR 180). DR supported the order of the FAA. 2. 2. We have heard the rival submissions and perused the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Secondly, the assessee should have filed inaccurate particulars or concealed particulars of such income. But both the conditions are missing in the case under consideration. Considering the peculiar facts and circumstances of the case, we are of the opinion that penalty u/s. 271(1)(c) was not leviable as it is a case of change of head of income only and assessee as well as AO were treating a particular head of income as correct head of income in earlier years. Therefore, the effective ground of appeal is decided in favour of the assessee. All other grounds of appeal are allowed for statistical purposes. As a result, appeal filed by the assessee stands allowed. Order pronounced in the open court on 23rd October, 2013. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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