Narender Kumar Choudhry ORDER
Narender Kumar Choudhry, Member (J)
1. These appeals have been preferred by the Assessee against the independent orders all dated 29/05/2023 impugned herein passed by the National Faceless Appeal Centre (NFAC) Delhi / Ld. Commissioner of Income Tax (Appeals) [in short, Ld. Commissioner'] under section 250 of the Income-tax Act, 1961 (in short, the Act') for the A.Ys. 2009-10, 2011-12, 2013-14 & 2014-15 respectively.
2. Since the challenge in all the four appeals, relates to affirmation of levy of penalty under section 271(1)(c) of the Act, therefore the same were heard together and are being disposed off by this composite order and ITA no. 2528/Mum/2023 as a lead case.
3. Brief facts as involved in ITA no. 2528/Mum/2023 which are relevant for adjudication of the instant appeal are that the Assessee, a Private Limited Company, carries on the business of builder and developer. The Assessee e-filed its return of income for A.Y. 2009-10 on 29/09/2009 declaring Nil income which was recomputed at Rs. 10,13,170/- by passing Assessment order dated 27/12/2016 U/s 143(3) of the Act.
Subsequently the case of the Assessee was reopened u/s 147 of the Act notice under section 148 was issued. It was observed by the AO that the Assessee had purchased an immovable property (flat) admeasuring about 1342 sq.ft. on the building known as Venus Apartment situated at 87, Cuffe Parade, Mumbai-400 005, for a total consideration of Rs.3,53,24,387/- which was let out to its director Shri Vipin Kumar Jain at a fixed monthly rent of Rs.25,000/- p.m. in the year 1998 an had also taken security deposit of Rs.70,00,000/-. It was also noticed that the Assessee had offered the rental income as "business income". The Assessing Officer vide assessment order treated the rental income as "Income from house property" and by adopting the market rental value @ Rs.1,50,000/- p.m., also added the deemed interest on the security deposit of Rs.70,00,000/- in addition to making other disallowances.
4. The Assessee carried the matter before the CIT(A), who vide impugned order confirmed the order of the Assessing Officer. On further appeal before the Tribunal, the Tribunal vide order dated 02/06/2018 held that the rental income received by the Assessee is not a "business income" and the same is to be treated as "Income from house property". With regard to the estimation of rental income, directed the AO to re-compute annual rateable value. The assessed income after giving effect to the order of the Tribunal stood as below:-
A.Y. Income after appeal effect As against assessed income
A.Y. 2009-10 Rs. 2,06,083/- Rs.10,13,170/-
5. On confirmation of the assessment by the CIT(A), the Assessing Officer initiated penalty proceedings under section 271(1)(c) of the Income-tax Act,1961 and vide penalty order dated 29-09-2019, finally levied the penalty of Rs. 3,13,069/- under section 271(1)(c) of the Act @ 100% of the tax sought to be evaded on the income of Rs.10,13,170/-.
6. On appeal, the Ld. Commissioner vide impugned order dated 29-05-2023, affirmed the levy of penalty under section 271(1)(c) of the Act, against which the Assessee being aggrieved preferred the instant appeal before the Tribunal.
7. Before the Tribunal, the grounds raised by the Assessee runs into two limbs; viz. the penalty cannot survive as the quantum appeal filed by the Assessee has been set aside / modified by the Tribunal;........