The ACIT, Circle-1 (1), Rajkot-Gujarat V. M/s. Ganga Glaze Tiles Pvt. Ltd., Morbi - PPW-363642

ITA 129/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3675 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-02-2024
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER I .T .A . N o .1 2 9 /R j t /2 02 3 ( A s se ss m e nt Y e a r : 20 08- 0 9 ) A s sis ta n t C o m mi s s i o ne r o f I n c o m e Ta x, C ir c le - 1( 1) , R a jk o t V s.G a n ga G la ze d Til es P v t. L td ., N at io na l H i gh wa y 8 A, M o r bi , PP W, R a j ko t [ P A N N o . A A C C G 9 42 2H ] (Appellant) .. (Respondent) Appellant by : Shri Ashish Kumar Pandey, Sr. DR Respondent by: Shri Mehul Ranpura, A.R. D a t e of H ea r i ng 14.02.2024 D a t e of P r o no u n ce me nt 23.02.2024 O R D E R PER SIDDHARTHA NAUTIYAL, JM: This appeal has been filed by the Revenue against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre, (in short “NFAC”), Delhi in Appeal No. ITBA/NFAC/S/250/2022-23/1050477630(1), vide order dated 07.03.2023 passed for Assessment Year 2008-09. 2. The Department has raised the following grounds of appeal:- “1. The Ld. CIT(A) has erred in law and/or on facts in quashing the penalty order resulting deleting the penalty of Rs.8,22,360/- overlooking the facts that the Revenue’s SLP is pending before the Hon’ble Supreme Court of India against the base order. 2. The appeal is being filed in view of the fact that the case falls under the exception No. (e) of the amendment to Board’s circular No. 3/2018 dated 20 th August, 2018” 3. Before us, at the outset, the Counsel for the assessee submitted that there is no infirmity in the order of Ld. CIT(A) which has deleted the penalty ITA No.129/Rjt/2023 ACIT vs. Ganga Glazed Tiles Pvt. Ltd. Asst.Year –2008-09 - 2 - imposed under Section 271(1)(c) of the Act on the assessee, on the ground that since the quantum addition, which was the basis for levy of penalty, has been deleted by ITAT vide order dated 10.08.2018 in ITA No. 100/Rjt/2013 and 133/Rjt/2013, there is no question of levy of penalty under Section 271(1)(c) of the Act. Accordingly, it was submitted before us that since the quantum additions itself has been deleted by ITAT, Ld. CIT(A) has not erred in facts and in law and holding that penalty under Section 271(1)(c) of the Act is liable to be deleted. 4. It would be pertinent to reproduce the relevant extracts of decision of Ld. CIT(A) for ready reference:- “5. Decision on Grounds of Appeal: The Grounds of Appeal, Written Submissions, Penalty order are noted. Grounds 2 & 3: The appellant in his response dated 23/03/2022 has stated that since the quantum addition which was subject matter of levy of penalty has been deleted by Hon'ble ITAT, there remains no basis at all for levy of penalty for concealment, and therefore, penalty levied on such addition become redundant and the same is liable to be cancelled. Relevant extract of Order of ITAT, Rajkot Bench dated 10.08.2018 vide ITA No. 100/Rjt./2013& 133/Rjt/2013 is reproduced below: "16. We make it clear that the 6 set of cross appeals for the Assessment Years 2008-09 are the same group of appeals which were initially remanded to the ld. ITAT by and under the order dated 29 06.2016 passed by Hon'ble Gujrat High Court. Out of which review Applications were preferred before the Hon'ble Gujrat High Court by the assessee in respect of 8 appeals which ultimately were disposed of by and under the judgement and order dated 25.04.2018 by the jurisdictional High Court Hon'ble High Court by the said judgement was pleased to dismiss the appeals preferred by the Revenue virtually dismissing the quantum order passed by the Assessing Officer in the absence of independent material brought on record except those were already collected by the Excise Department which are yet to be verified. The Hon'ble High Court was further pleased to observe, since the addition made by the Assessing Officer had no basis, the question of percentage of the sales at which stage additions should be made would become redundant. The appeals before us since identical in nature having same set of facts are covered by the ration of the said order dated 25.04.2018 passed by the Hon’ble High Court at Gujarat. We therefore, respectfully following the judgement and order dated 25.04.2018 passed by the Hon’ble High Court at Gujarat, delete the quantum order dated 25.04.2018 passed by the Hon’ble High Court at Gujarat, delete the quantum order passed by the authorities below and thereby allow the appeals preferred by the assessee. Consequently, the appeals preferred by the Revenue become infructuous. This Order pronounced in open Court on 10/08/2018” ITA No.129/Rjt/2023 ACIT vs. Ganga Glazed Tiles Pvt. Ltd. Asst.Year –2008-09 - 3 - With reference to assessee’s submissions, in the order of ITAT, Rajkot Bench dated 10.08.2018, the quantum of addition of base order is deleted in ITA No. 100 & 133/Rjt/2013. Since the additions of base order is deleted, penalty order u/s 271(1)(c) of the IT Act dated 27.02.2017 becomes infructuous and is quashed. The Grounds are noted as allowed. Grounds 1 & 4: The Grounds being general in nature does not require separate adjudication. Hence, the appeal is noted as allowed.” 5. We observe that since ITAT vide order dated 10.08.2018 has deleted the quantum additions for the impugned assessment year, there is no infirmity in the order of Ld. CIT(A) in holding that since the quantum additions have been deleted, penalty order under Section 271(1)(c) of the Act become infructuous and is liable to be quashed. 6. In the result, the appeal of the assessee is allowed. This Order pronounced in Open Court on 23/02/2024 Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23/02/2024 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, राजोकट / DR, ITAT, Rajkot 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार Dy./Asstt.Registrar) आयकर अपील य अ धकरण, राजोकट / ITAT, Rajkot 1. Date of dictation 21.02.2024 2. Date on which the typed draft is placed before the Dictating Member 22.02.2024 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 22.02.2024 5. Date on which the fair order is placed before the Dictating Member for pronouncement .02.2024 6. Date on which the fair order comes back to the Sr.P.S./P.S 23.02.2024 7. Date on which the file goes to the Bench Clerk 23.02.2024 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................