M/s PTC India Ltd., New Delhi V. DCIT, New Delhi

CO 269/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8616 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 20-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHIVANSH PANDYA
• Keywords: Wrong claim; Rule 8D; Set aside
• Section: 271(1)(c); 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCE E, NEW DELHI BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3369 /DEL./2016 (ASSESSMENT YEAR : 2009-10) DCIT VS. PTC INDIA LTD., CIRCLE 19(2), 2 ND FLOOR, NBCC TOWER-15, NEW DELHI BHIKAJI CAMA PLACE, NEW DELHI PAN : AABCP7947F APPELLANT RESPONDENT C.O. NO.269 /DEL./2016 (IN ITA NO. 3369/DEL/2016) (ASSESSMENT YEAR : 2009-10) PTC INDIA LTD., VS. DCIT 2 ND FLOOR, NBCC TOWER-15, CIRCLE 19(2), BHIKAJI CAMA PLACE, NEW DELHI NEW DELHI PAN : AABCP7947F APPELLANT RESPONDENT ASSESSEE BY : SH. SANT KAPOOR, ADV., SH. SALIL KAPOOR, ADV. & SH. SHIVANSH PANDYA, ADV. REVENUE BY : SMT. RINKU SINGH, SR.DR DATE OF HEARING : 04 .04.2019 DATE OF ORDER : 10 .04.2019 ITA NO. 3369/DEL/2016 (C.O. NO. 269/DEL/2016) 2 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : AFORESAID APPEALS AS WELL AS CROSS OBJE CTIONS HAVING BEEN EMANATED FROM SAME IMPUGNED ORDER DATED 30.03.2016 PASSED BY LD. CIT(A) ARE BEING DECIDED BY WAY OF COMPOSITE ORDER TO AVOID OF REPETITION OF DISCUSSION. 2. THE APPELLANT DY. COMMISSIONER OF INCOME TAX, N EW DELHI (HEREINAFTER REFERRED TO AS 'THE REVENUE') BY FILIN G THE AFORESAID APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 30/03 /2016 PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEALS)-7, NEW DELH I QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA THAT : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING T HE PENALTY LEVIED BY THE AO U/S 271(1)(C) AMOUNTING TO RS. 1,46,566,380/- IGNORING THE FACT THAT THE ASSESSEE HAS MADE WRONG CLAIM FOR DEDUCTION UNDER THE PROVISION OF INCOME TAX ACT, 1961. 2. THE APPELLANT CRAVES TO BE ALLOWED TO ADD ANY FRESH GROUND(S) OF APPEAL AND/OR DELETE OR AMEND ANY OF THE GROUND(S) OF APPEAL. 3. CROSS OBJECTOR PTC INDIA LTD. HEREBY REFERRED TO ASSESSEE FILED THE CROSS OBJECTIONS CHALLENGING IMPUGNED ORDER DATED 30.03.2016 PASSED ITA NO. 3369/DEL/2016 (C.O. NO. 269/DEL/2016) 3 BY LD. CIT(A)-7, NEW DELHI QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS, INTER ALIA, THAT : 1. THAT THE NOTICE ISSUED U/S 271(1)(C) AND ORDER PASSED UNDER SAID SECTION IMPOSING PENALTY OF RS. 1,46,56,380/- ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THAT NO VALID SATISFACTION WAS RECORDED BEFORE INITIATION OF PENALTY PROCEEDING U/S 271(1)(C) AND AS SUCH THE NOTICE U/S 271(1)(C) AND PENALTY ORDER PASSED UNDER SAID SECTION ARE WITHOUT JURISDICTION AND LIABLE TO BE QUASHED. 3.THAT THE PENALTY ORDER IS LIABLE TO BE QUASHED SINCE THE AO IS HIMSELF NOT SURE AS TO WHETHER THE ASSESSEE HAS CONCEALED ITS INCOME OR THAT THE ASSESSEE HAS FURNISHED IN ACCURATE PARTICULARS OF INCOME. 4.THAT IN THE ABSENCE OF SPECIFIC CHARGE, THE LEVYI NG OF PENALTY UNDER SECTION 271(1)(C) IS ILLEGAL AND WITHOUT JURISDICTION. 5.THAT THE RESPONDENT RESERVES THE RIGHT TO ADD/AMEND/ ALTER THE GROUNDS OF CROSS OBJECTION. 4. BRIEFLY STATED THAT FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF COMPLETE D ASSESSMENT U/S 143(3) AT THE INCOME OF RS. 55,97,08,040/- BY M AKING ADDITIONS TO THE TUNE OF RS. 2,96,680/- AND 5,49,40 ,363/- ON ITA NO. 3369/DEL/2016 (C.O. NO. 269/DEL/2016) 4 ACCOUNT OF DISALLOWANCE OF PRIOR PERIOD EXPENSES AN D DISALLOWANCE U/S 14A READ WITH RULE 8D OF THE ACT, ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS BY WAY OF ISSUANCE OF NOTICE U/S 274 READ WITH SECTION 271(1)(C). DECLIN ING THE CONTENTIONS RAISED BY THE ASSESSEE THAT PENALTY P ROCEEDINGS ARE NOT SUSTAINABLE ON THE BASIS OF DISALLOWANCE OF EXP ENSES AND ON GROUND OF MAKING DISALLOWANCE U/S 14A OF THE ACT, A O LEVIED THE PENALTY OF RS. 1,46,56,382/- @ 100% FOR CONCEAL ING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME U/S 271(1)(C). 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A ) BY WAY OF FILING THE APPEAL WHO HAS DELETED THE PENALTY BY ALLOWING THE APPEAL. FEELING AGGRIEVED REVENUE AS WELL AS ASSESS EE HAVE COME UP BEFORE THE TRIBUNAL BY WAY OF FILING PRESENT APP EAL AS WELL AS CROSS OBJECTIONS. 6. W E HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. AT THE VERY OUTSET, IT IS BROUGHT TO THE NOTICE OF THE BENCH BY THE LD. AR FOR THE ASSESSEE THAT IN THE QUANTUM PRO CEEDINGS APPEAL ITA NO. 3369/DEL/2016 (C.O. NO. 269/DEL/2016) 5 OF THE ASSESSEE BEFORE TRIBUNAL BEARING ITA NO. 62 23/DEL/2012 FOR A.Y. 2009-10 THE ISSUE AS TO DISALLOWANCE U/S 14A H AS SINCE BEEN REMANDED BACK BY THE TRIBUNAL VIDE ORDER DATED 08.0 1.2019 TO DECIDE AFRESH BY THE ASSESSING OFFICER. 8. IN VIEW OF THE MATTER, WE ARE OF THE CONSIDERED VIEW THAT WITHOUT ENTERING INTO MERITS OF THIS CASE THE PENAL TY PROCEEDINGS ARE NOT SUSTAINABLE, HENCE DELETED, AS THE QUANTUM PROC EEDINGS HAVE ALREADY BEEN REMANDED BACK TO THE AO TO DECIDE AFRE SH. SO, AO IS AT LIBERTY TO INITIATE THE PENALTY PROCEEDINGS, IF ANY, AFTER PASSING FRESH ASSESSMENT ORDER. CONSEQUENTLY APPEAL FILED BY THE REVENUE AS WELL AS CROSS OBJECTION FILED BY THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 10 TH DAY OF APRIL, 2019. SD/- SD/- (R.K.PANDA) ( KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH DAY OF APRIL, 2019 BR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI ITA NO. 3369/DEL/2016 (C.O. NO. 269/DEL/2016) 6 DATE OF DICTATION 05.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER