ACIT, CHENNAI V. Vinayaga Tempo, Madurai

ITA 1136/CHNY/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81142 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 08-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2014
• Court: TRIBUNAL
• Department Lawyers: C V PAVANA KUMAR
• Assessee Lawyers: N VIJAY KUMAR
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHE NNAI . . . , !' , # $! % BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / I.T.A. NO. 1136/MDS/2014 / ASSESSMENT YEAR : 2007-08 THE ASST. COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-V, CHENNAI 34 ( '& /APPELLANT) VS M/S.VINAYAGA TEMPO, C/O. G.MURUGESAN, MANAGING PARTNER, D-1, SIDCO INDUSTRIAL ESTATE, GST ROAD, KAPPALUR, MADURAI-625 008 [PAN: AADFV 3078 Q] ( '('& /RESPONDENT) REVENUE BY : SHRI C.V.PAVANA KUMAR, JCIT ASSESSEE BY : SHRI N.VIJAY KUMAR, CA / DATE OF HEARING : 08-09-2014 / DATE OF PRONOUNCEMENT : 08-09-2014 $) / O R D E R PER VIKAS AWASTHY, J.M: THE APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-V, CHENNAI D ATED 02-12-2013 FOR ASSESSMENT YEAR (AY) 2007-08 DELETIN G PENALTY I.T.A. NO. 1136/MDS/2014 2 U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREIN A FTER REFERRED TO AS THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE: SCRUTINY ASSESS MENT FOR THE AY.2007-08 WAS MADE BY THE ASSESSING OFFICER VIDE O RDER DT.31-12-2009. AGGRIEVED BY THE DIS-ALLOWANCES/ADDITIONS MADE IN THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APPEALS). THE CIT(APPEALS) UPHELD THE ASSESSME NT ORDER. THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL ASSAI LING THE ORDER OF CIT(APPEALS). IN APPEAL BEFORE THE TRIBUNAL I.E ., ITA NO.289/MDS/2013, THE ASSESSEE IMPUGNED DIS-ALLOWANC ES CONFIRMED BY THE CIT(APPEALS) ON FOLLOWING COUNTS: I. ESTIMATION OF DIS-ALLOWANCE AT 40% UNDER VARIOUS HEADS; II. DIS-ALLOWANCE OF EXPENDITURE U/S.40(A)(IA); AND III. DIS-ALLOWANCE MADE U/S.43B OF THE ACT. THE TRIBUNAL VIDE ORDER DT.16-07-2013, SET ASIDE TH E ORDER OF CIT(APPEALS) AND REMITTED ALL THE ISSUES RAISED IN QUANTUM APPEAL BACK TO THE FILE OF ASSESSING OFFICER, TO EXAMINE A FRESH IN THE LIGHT I.T.A. NO. 1136/MDS/2014 3 OF EVIDENCES PRODUCED AND SUBMISSIONS MADE BY THE A SSESSEE. IN THE MEANTIME, THE ASSESSING OFFICER VIDE ORDER D T.30-01-2013, LEVIED PENALTY OF ` 59,52,639/- U/S.271(1)(C). THE ASSESSEE CARRIED PENALTY ORDER IN APPEAL BEFORE THE CIT(APPEALS). THE CIT(APPEALS) VIDE IMPUGNED ORDER DELETED THE PENALTY AND OBSERVED AS UNDER: SINCE THE ORDER FROM WHICH THIS PENALTY HAS EMANAT ED HAS BEEN SET ASIDE FOR CONSIDERING THE FACTS AFRESH, TH E ORDER OF PENALTY U/S.271(1)(C) PASSED BY THE ASSESSING OFFIC ER BECOMES INFRUCTUOUS, HENCE THE APPEAL IS ALLOWED FO R STATISTICAL PURPOSES BASED ON THE ITAT ORDER VIDE I TA NO.289/MDS/2013 DT.16-07-2013. NOW, THE REVENUE HAS COME IN APPEAL BEFORE THE TRIB UNAL ASSAILING THE ORDER OF CIT(APPEALS). 3. SHRI C.V.PAVANA KUMAR, APPEARING ON BEHALF OF TH E DEPARTMENT SUBMITTED THAT THE CIT(APPEALS) HAS ERRE D IN DELETING THE PENALTY U/S.271(1)(C). THE LD.DR SUBMITTED THA T ADDITION TOWARDS LONG TERM CAPITAL GAINS WAS NOT IMPUGNED BY THE ASSESSEE IN QUANTUM APPEAL BEFORE THE TRIBUNAL. I.T.A. NO. 1136/MDS/2014 4 4. SHRI N.VIJAY KUMAR, APPEARING ON BEHALF OF THE A SSESSEE, SUPPORTING THE IMPUGNED ORDER SUBMITTED, THAT ONCE THE TRIBUNAL HAS REMITTED THE FILE BACK TO ASSESSING OFFICER FOR FRESH ADJUDICATION OF CERTAIN ISSUES, THE ORIGINAL ASSESS MENT ORDER DOES NOT SURVIVE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF BOTH THE SIDES, AND HAVE ALSO PE RUSED THE ORDERS OF THE AUTHORITIES BELOW. THE TRIBUNAL IN Q UANTUM APPEAL OF THE ASSESSEE IN ITA NO.289/MDS/2013 (SUPRA) HAS SET ASIDE THE ORDER OF CIT(APPEALS) AND REMITTED THE ISSUE RAISED IN THE APPEAL BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH DEC ISION AFTER CONSIDERING THE EVIDENCES PRODUCED BY THE ASSESSEE. IT IS A FACT THAT IN THE QUANTUM APPEAL, THE ASSESSEE HAD IMPUGN ED DIS- ALLOWANCES MADE BY THE ASSESSING OFFICER IN THE ASS ESSMENT ORDER AND NOT THE ADDITION MADE TOWARDS LONG TERM C APITAL GAINS. SINCE, THE SUBSTRATUM OF THE ASSESSMENT ORDER HAS B EEN SET ASIDE, THE ENTIRE ASSESSMENT ORDER BECOMES NON-EST. THE PR ESENT PENALTY PROCEEDINGS ARE ARISING FROM THE ASSESSMENT ORDER WHICH HAS ALREADY BEEN SET ASIDE. THE ASSESSING OFFICER WAS DIRECTED BY THE TRIBUNAL TO PASS FRESH ASSESSMENT ORDER. WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF CIT(APPEALS) IN TH E IMPUGNED ORDER. I.T.A. NO. 1136/MDS/2014 5 ACCORDINGLY, THE APPEAL OF REVENUE IS DISMISSED AN D THE FINDINGS OF THE CIT(APPEALS) ARE CONFIRMED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 8 TH SEPTEMBER, 2014 AT CHENNAI. SD/- SD/- ( . . . ) ( !' ) (DR. O.K. NARAYANAN) (VIKAS AWAS THY) / VICE PRESIDENT ! / JUDICIAL MEMBER '# /CHENNAI, $ /DATED: 08 TH SEPTEMBER, 2014 TNMM #% & '( )#( /COPY TO: 1. *+ /APPELLANT 2. &,*+ /RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. (01 & 2 /DR 6. 13 4 /GF