ACIT,Central Circle-1, Bhubaneswar V. M/s. Nidan, Berhampur, Berhampur

ITA 10/CTK/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3262 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND MANISH BORAD, ACCOUNTANT MEMBER ACIT, CENTRAL CIRCLE AAYAKAR BHAWAN, BHUBANESWAR. PAN/GIR NO. (APPELLANT PER BENCH THESE ARE THE CIT(A),2 , BHUBANESWAR 2009- 10 TO 2015 2. AT THE OUTSET, LD A.R. OF THE ASSESSEE S APPEALS, RELIEF HAS BEEN GRANTED BY THE LD CIT(A) ON THE BASIS OF ORDER OF THE TRIBUNAL DATED 16.5.2018 IN IT(SS) THE TRIBUNAL HAS SET ASIDE THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER BY HOLDING THAT SAME WERE TIME BARRED. ACCORDINGLY, LD A.R. IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/ SHRI CHANDRA MOHAN GARG, JUDICIAL AND MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.09 TO 15/CTK/20 19 ASSESSMENT YEARS : 2009- 10 TO 2015 ACIT, CENTRAL CIRCLE - 1, 4 TH FLOOR, AAYAKAR BHAWAN, BHUBANESWAR. VS. M/S. NIDAN, IN FRONT OF DIG OFFICE, SALES TAX ROAD, BERHAMPUR NO. AAEFN 3022 D (APPELLANT ) .. ( RESPONDENT ASSESSEE BY : SHRI D.PARIDA/ C.PARIDA REVENUE BY : SHRI M.K.GAUTAM, DATE OF HEARING : 20 /10 / 20 DATE OF PRONOUNCEMENT : 20/ 10 O R D E R THESE ARE APPEALS FILED BY THE REVENUE AGAINST THE , BHUBANESWAR DATED 10.10.2018 FOR THE ASSESSMENT YEAR 10 TO 2015 -16, RESPECTIVELY. AT THE OUTSET, LD A.R. OF THE ASSESSEE S UBMITTED THAT APPEALS, RELIEF HAS BEEN GRANTED BY THE LD CIT(A) ON THE BASIS OF ORDER OF THE TRIBUNAL DATED 16.5.2018 IN IT(SS) A NOS.32 TO 37/CTK/2018, WHEREIN, THE TRIBUNAL HAS SET ASIDE THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER BY HOLDING THAT SAME WERE TIME BARRED. ACCORDINGLY, LD A.R. P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER 19 10 TO 2015 -16 M/S. NIDAN, IN FRONT OF DIG OFFICE, SALES TAX ROAD, RESPONDENT ) C.PARIDA , ARS CIT (DR) / 20 21 10 /2021 AGAINST THE COMMON ORDER OF FOR THE ASSESSMENT YEAR S UBMITTED THAT IN THESE APPEALS, RELIEF HAS BEEN GRANTED BY THE LD CIT(A) ON THE BASIS OF ORDER OF A NOS.32 TO 37/CTK/2018, WHEREIN, THE TRIBUNAL HAS SET ASIDE THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER BY HOLDING THAT SAME WERE TIME BARRED. ACCORDINGLY, LD A.R. ITA NOS.09 TO 15/CTK/2019 ASSESSMENT YEARS : 2009-10 TO 2015-16 P A G E 2 | 4 SUBMITTED THAT AS THE VERY BASIS OF ADDITION REGARDING LEVY OF PENALTY U/S.171(1)(C) OF THE INCOME TAX ACT, 1961 HAS BEEN SET ASIDE BY THE TRIBUNAL, IN THE QUANTUM PROCEEDINGS IN ALL THESE ASSESSMENT YEARS, THE PENALTY LEVIED HAS TO BE CANCELLED. 3. REPLYING TO ABOVE, LD CIT DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IN QUANTUM PROCEEDINGS HAS BEEN CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT OF ORISSA AND SIMULTANEOUSLY, MISCELLANEOUS PETITIONS HAVE ALSO BEEN FILED BEFORE THE TRIBUNAL TO RECONSIDER THE CASE. HOWEVER, IN ALL FAIRNESS, LD CIT (DR) CONCEDED THAT THE LD CIT(A) HAS GRANTED RELIEF ON THE BASIS OF TRIBUNALS ORDER DATED 16.5.2018(SUPRA) AND DID NOT CONTROVERT OR OPPOSE THAT THESE DEPARTMENTAL APPEALS CAN BE HEARD AND ADJUDICATED. LEARNED CIT D.R. STRONGLY SUPPORTED THE PENALTY ORDER AND REITERATED THAT THE LD CIT(AS) HAS GRANTED RELIEF ON THE BASIS OF TRIBUNAL ORDER IN QUANTUM, PROCEEDINGS DATED 16.5.2018(SUPRA), WHEREIN, ASSESSMENT ORDERS HAVE BEEN SET ASIDE/QUASHED BY HOLDING THAT SAME ARE TIME BARRED. 4. IN REJOINDER, LD AR VEHEMENTLY SUBMITTED THAT WHEN THE ASSESSMENT ORDERS PASSED BY THE AO HAVE BEEN SET ASIDE/QUASHED BEING TIME BARRED, THEN THE LD CIT(A) WAS QUITE CORRECT AND JUSTIFIED IN DELETING THE PENALTY. 5. WE HAVE HEARD BOTH THE SIDES AND HAVE PERUSED THE RECORD OF THE CASE AS WELL AS THE ORDER OF THE TRIBUNAL DATED 16.5.2018 (SUPRA) IN QUANTUM APPEALS (SUPRA). SINCE THE ADDITION IN QUANTUM APPEALS, WHICH ITA NOS.09 TO 15/CTK/2019 ASSESSMENT YEARS : 2009-10 TO 2015-16 P A G E 3 | 4 WAS THE VERY BASIS OF LEVYING THE PENALTY, HAS BEEN SET ASIDE BY THE TRIBUNAL, THEREFORE, THE PENALTY ORDER OF ASSESSING OFFICER HAS NO LEGS TO STAND. WE FIND THAT THE LD CIT(A) IN THE IMPUGNED ORDER AT PARAS 4 & 5 HAS STATED AS UNDER: 4. I HAVE CAREFULLY EXAMINED THE PENALTY ORDER AND SUBMISSIONS OF THE APPELLANT. AS PER THE CONSOLIDATED ORDER DATED 16.5.2018 IN IT(SS) A NOS.32 TO 37/CTK/2018, THE HONBLE INCOME TAX APPELLATE TRIBUNAL, HAS SET ASIDE THE ASSESSMENT ORDERS PASSED BY THE AO FOR ALL THE ASSESSMENT ORDERS. THE RELEVANT PORTION OF THE ORDER OF THE HONBLE TRIBUNAL IS AS BELOW: HENCE, IN OUR CONSIDERED OPINION, THE SAID ORDERS OF ASSESSMENT WERE TIME BARRED AND CONSEQUENTLY, WE SET ASIDE THE SAME AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE FOR ALL THE SEVEN YEARS UNDER APPEAL. 5. CONSIDERING THESE FACTS AND THE DECISIONS RELIED UPON BY THE APPELLANT (SUPRA), THE PENALTIES LEVIED BY THE AO FOR ALL THE SEVEN ASSESSMENT YEARS UNDER CONSIDERATION ARE CANCELLED. THE GROUNDS OF APPEAL ARE ALLOWED FOR ALL THE ASSESSMENT YEARS. 6. IN VIEW OF THIS, WE UPHOLD THE ORDER OF LEARNED CIT(A) DELETING THE PENALTIES LEVIED FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. AT THE SAME TIME, BEFORE WE PART WITH THE ORDER, WE MAKE IT CLEAR THAT IN CASE ORDER OF THE TRIBUNAL DATED 16.5.2018 (SUPRA) IS REVERSED OR NULLIFIED OR CHANGED IN ANY MANNER BY HONBLE HIGH COURT OF ORISSA OR ANY OTHER COMPETENT AUTHORITY, THEN THE DEPARTMENT WILL BE ENTITLED TO INITIATE PENALTY PROCEEDINGS AND TO PASS APPROPRIATE ORDERS ACCORDING TO THE PROVISIONS OF THE INCOME TAX ACT, 1961. ITA NOS.09 TO 15/CTK/2019 ASSESSMENT YEARS : 2009-10 TO 2015-16 P A G E 4 | 4 7. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 20/10/2021. SD/- SD/- (MANISH BORAD) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 20 /10/2021 B.K.PARIDA, SPS (OS) COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT.SECRETARY ITAT, CUTTACK 1. THE APPELLANT : ACIT, CENTRAL CIRCLE - 1, 4 TH FLOOR, AAYAKAR BHAWAN, BHUBANESWAR. 2. THE RESPONDENT. M/S. NIDAN, IN FRONT OF DIG OFFICE, SALES TAX ROAD, BERHAMPUR 3. THE CIT(A) - 2 , BHUBANESWAR 4. PR.CIT - 2 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//