IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER SHRI GIRISH AGARWAL, ACCOUNTANT MEMBER ITA No. 5040/MUM/2024 (Assessment Year: 2015-16)

Milan Theatres Private Limited Milan Theatres Subway Road, Santacruz West, Mumbai – 400054.

[PAN: AAFCM6714R] …………. Appellant DCIT Circle 4(3)(1) Vs Aayakar Bhawan, Mumbai – 400020. …………. Respondent Appearance For the Appellant/Assessee : Letter File For the Respondent/Department : Shri. Rajesh Meshram, Sr. AR Date Conclusion of hearing : 04.02.2025 Pronouncement of order : 27.02.2025

O R D E R

Per Rahul Chaudhary, Judicial Member:

1. The present appeal has been preferred by the Assessee against the order, dated 29/07/2024, passed by the Commissioner of Income Tax, Appeal, Delhi [hereinafter referred to as the ‘CIT(A)’], under Section 250 of the Income Tax Act, 1961[hereinafter referred to as ‘the Act’], whereby the Ld. CIT(A) had dismissed the appeal of the Assessee against the Penalty Order, dated 27/12/2019, passed under Section

271(1)(c) of the Act, for the Assessment Year 2015-2016.

2. Ground No. 3 and 4 raised by the assessee in the present appeal reads as under:

“3. On the facts and in the circumstances of the appellant company's case and in law, the Ld. Commissioner of Income Tax (Appeals), failed to consider the fact that the Hon'ble Income Tax Appellate Tribunal, Mumbai in ITA No.

76/Mum/2019 vide its order dated 31.03.2022 had in toto deleted the alleged additions on account of property tax and service tax made vide assessment order passed u/s 143(3) of the Income Tax Act, 1961 dated 31.08.2018, whereas the alleged penalty was levied by the Ld. Assessing Officer during pendency of quantum appeal before Hon'ble Tribunal

4. On the facts and in the circumstances of the appellant company's case and in law, the Ld. Commissioner of Income Tax (Appeals), erred in not quashing the impugned penalty order passed u/s 271(1)(c) of the Income Tax Act, 1961 totally ignoring the fact that the quantum appeal has been allowed in favor of the appellant company by Hon'ble Income Tax Appellate Tribunal, Mumbai in ITA No. 79/Mum/2019 vide order dated 31.03.2022, that was brought to knowledge of the Ld. Commissioner of Income Tax (Appeals), NFAC, and has been reproduced in his appellate Order as well but he chose to confine his decision to the order of Assessing Officer in utter disregard to binding decision of Hon'ble Tribunal deleting quantum addition and the legal position settled by the Hon'ble Supreme Court.”

3. We have heard the Learned Departmental Representative and have perused the material on record. We also taken judicial notice of the order, dated 31/03/2022, passed by the Tribunal in the case of the Assessee in quantum appeal preferred by the Assessee for the Assessment Year 2015–16 [ITA No.

76/Mum/2019].

4. Facts as emanating from record are that assessment was framed on the Assessee under Section 143(3) of the Act for the Assessment Year 2015-2016 vide Assessment Order, dated 26/12/2017. While completing the aforesaid assessment, Assessing Officer made disallowances aggregating to INR.5,23,58,160/- on account of service tax and property tax. Penalty proceedings were also initiated against the Assessee which culminated into passing of the Penalty Order, dated 27/12/2019, under Section 271(1)(c) of the Act whereby penalty of INR.1,69,87,605/- was levied for furnishing inaccurate particulars of income. The appeal preferred by the Assessee against the aforesaid Penalty Order was dismissed by the CIT(A) vide order, dated 29/07/2024. Being aggrieved the Assessee has preferred the present appeal before the Tribunal.

5. On perusal of the Ground No. 3 and 4 raised by the Assessee we find that it has been contended on behalf of the Assessee the additions made while framing assessment under Section 143(3) of the Act, which formed the basis of levy of penalty under Section 271(1)(c) of the Act, have been deleted by the Tribunal in the quantum appeal preferred by the A