M/s Multiplex Commodity Merchantile (P) Ltd., Delhi V. ITO, New Delhi

ITA 1247/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3721 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 19-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA ITA NO. 1247/DEL/10 A.Y. 2006-07 M/S MULTIPLEX COMMODITY VS. ITO WARD 5(4), MERCANTILE (P) LTD. NEW DELHI. 100/28, KESHAV, SECTOR-9, ROHINI, DELHI-110085. PAN/ GIR NO. AADCM6694C ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI AJAY WADHWA CA RESPONDENT BY : SHRI KISHORE B. DR O R D E R PER R.P. TOLANI , J.M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(APPEALS) DATED 21-1-2010 RELATING TO ASSESSMENT YEAR 2006-07. 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LD. CIT(A) DATED 29-6-2009 CO NFIRMING THE PENALTY LEVIED U/S 271(1)(C) FOR A.Y. 2006-07 I S ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN DISMISSING THE APPE AL FILED BY THE ASSESSEE AGAINST PENALTY ORDER U/S 271(1)(C) DA TED 29-06- 2009 BY SAYING THAT APPLICANT COMPANY IS NOT INTER ESTED IN PURSUING THE MATTER ANY FURTHER AND ACCORDINGLY APP EAL IS BEING DISMISSED FOR NON-PROSECUTION. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) OUGHT TO HAVE CANCELLED THE PENALTY ORDE R PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) LEVYING PENALTY OF RS. ITA 1247/DEL/2010 M/S MULTIPLEX COMMODITY MERCANTILE (P) LTD. 2 33,660/- AS DISALLOWANCE OF RS. 1,00,000/- BEING FE E PAID TO ROC FOR INCREASING THE AUTHORIZED SHARE CAPITAL DOE S NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING OF IN ACCURATE PARTICULARS OF INCOME. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT O N 7-1-2010, DATE OF HEARING FIXED BEFORE CIT(A), THE ASSESSEES COUNSEL HAD APPLIED FOR ADJOURNMENT. ACCORDING TO CIT(A) THE HE ARING WAS ADJOURNED TO 19-1-2010, BUT ASSESSEE DID NOT RECEIV E ANY NOTICE FOR SUCH HEARING. CIT(A) DISMISSED ASSESSEES APPEAL, C ONFIRMING PENALTY LEVIED U/S 271(1)(C) BY THE AO, WITHOUT GOING INTO THE MERITS OF THE CASE BY OBSERVING THAT ASSESSEE COMPANY WAS NOT INT ERESTED IN PURSUING THE APPEAL. ACCORDING TO LEARNED COUNSEL, SINCE NO NOTICE, FIXING APPEAL FOR HEARING ON 19-1-2010 WAS RECEIVE D BY ASSESSEE, THE EX PARTE ORDER PASSED BY CIT(A) WAS NOT PROPER, MOR E SO WHEN THE ISSUE OF PENALTY HAS NOT BEEN CONSIDERED ON MERITS AT ALL. 4. LEARNED DR SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE HEARD RIVAL CONTENTIONS AND HAVE GONE TH ROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. IN OUR VIEW, EVEN IF CIT(A) WANTED TO PROCEED WITH ASSESSEES APPEAL ON EX PARTE BASIS, THE SAME SHOULD HAVE BEEN CONSIDERED ON THE BASIS OF MERITS. MERE REJECTION O F ADJOURNMENT APPLICATION OR NON-ATTENDANCE WILL NOT ENTAIL INTO CONFIRMATION OF AOS ORDER WITHOUT CONSIDERING THE MERITS OF THE CASE. IN VIEW, THEREO F, WE SET ASIDE THE EX PARTE ORDER PASSED BY CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE TO DECIDE THE ITA 1247/DEL/2010 M/S MULTIPLEX COMMODITY MERCANTILE (P) LTD. 3 APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ASESSEES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 13-7-2010. (B.C. MEENA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13-7- 2010. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 1247/DEL/2010 M/S MULTIPLEX COMMODITY MERCANTILE (P) LTD. 4