ITO, New Delhi V. M/s. Kashyap Metals & Allied Industries Ltd., New Delhi

ITA 130/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5386 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT JAIN
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: D , NEW DELHI BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 130 /DEL/201 5 AY: 200 8 - 09 ITO, WARD 14(2) C.R.BUILDING NEW DELHI VS . KASHYAP METALS & ALLIED INDUSTRIES LTD. 49, SQUARE HOUSE COMMUNITY CENTRE FRIENDS COLONY NEW DELHI 110 065 PAN: AAACK4822B (APPELLANT) (RESPONDENT) REVENUE BY : SH. J.K.MISHRA, CIT (DR) ASSESSEE BY : SH. ROHIT JAIN, ADV. & SH . VIBHU GUPTA, CA DATE OF HEARING : 21/01/2019 DATE OF PRONOUNCEMENT : 29/01/2019 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER P RESENT PENALTY APPEAL HAS BEEN FILED BY REVENUE AGAINST ORDER DATED 14/10/14 PASSED BY LD. CIT (A) - 8, NEW DELHI, ON FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271(1)(C) OF THE ITA NO. 130/DEL/2015 A.Y.2008 - 09 ITO VS. KASHYAP METALS & ALLIED INDUSTRIES LTD. 2 I .T.ACT, 1961 OF RS.3,66,39,385/ - ESPECIALLY WHEN THE APPEAL AGAINST THE QUANTUM IS STILL PENDING BEFORE THE TRIBUNAL. 2. THAT THE ORDER OF LD.CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 3. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR FOREGO ANY GROUND(S) OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. BRIEF FACTS OF THE CASE ARE AS UNDER : ASSESSEE FILED ITS RETURN OF INCOME ON 27/09/08, DECLARING TOTAL INCOME OF RS.5,32,08,378/ - INCLUDING LONG TERM CAPITAL GAIN OF RS.4,07,35,010/ - . ASSESSMENT ORDER WAS PASSED ON 30/12/10 AT INCOME OF RS.6,33,80,570/ - BY RE - COMPUTING LONG TERM CAPITAL GAIN AT RS.5,08,54,387/ - COMPUTED BY ASSESSEE. AGGRIEVED BY ORDER OF LD. AO, ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT (A) WHO PARTIALLY GRANTED RELIEF TO ASSESSEE. AGGRIEVED BY ORDER OF LD. CIT (A) , ASSESSEE PREFERRED APPEAL BEFORE THIS TRIBUNAL. 2.1 . IN THE MEANTIME LD. AO PASSED PENALTY ORDER BY LEVYING HUNDRED PERCENT PEN ALTY OF RS. 3,66,39,385/ - . 2.2 . AGGRIEVED BY PENALTY ORDER PASSED BY LD. AO ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO DELETED PENALTY LEVIED. 2.3. AGGRIEVED BY ORDER OF LD. CIT (A) REVENUE IS IN APPEAL BEFORE US NOW. 3. AT THE OUTSET LD. A.R. SUBMITTED THAT ISSUE REGARD ING QUANTUM ADDITION STANDS FULLY SETTLED BY ORDER OF THIS T RIBUNAL , WHEREIN INDEXATION BENEFIT HAS BEEN GRANTED TO ASSESSEE. HE PLACED RELIANCE UPON ORDER OF THIS T RIBUNAL FOR ASSESSMENT YEAR ITA NO. 130/DEL/2015 A.Y.2008 - 09 ITO VS. KASHYAP METALS & ALLIED INDUSTRIES LTD. 3 UND ER CONSIDERATION IN ITA NO. 5102/ D EL/2011 PLACED AT PAGE 1 - 12 OF PAPER BOOK IN SUPPORT. 3.1. FURTHER IT HAS BEEN SUBMITTED THAT , REVENUE PREFERRED APPEAL BEFORE HONBLE DELHI HIGH COURT AND ADMITTED REVENUES APPEAL IN ITA NO. 1029/15 V IDE ORDER DATED 22/12/15, WHEREIN QUEST ION OF LAW FRAMED AS UNDER: B. WHETHER IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE THE ITAT HAS ERRED IN ALLOWING INDEXATION BENEFIT ON THE BORROWING COST WHEN THE LEASEHOLD RIGHTS WAS CANCELLED ON 29 MARCH, 1998 AND THE SAME WAS RESTORED BACK ON 0 6/08/04? A COPY OF THE SAID ORDER HAS BEEN PLACED AT PAGE 13 - 14 OF PAPER BOOK. 3.2. HE SUBMITTED THAT SAID QUESTION WAS DECIDED BY HONBLE DELHI HIGH COURT , VIDE ORDER DATED 16/05/2017 , A COPY OF WHICH HAS BEEN PLACED AT PAGE 15 - 18 OF PAPER BOOK, WHEREIN REVENUES APPEAL HAS BEEN DISMISSED, THEREBY UPHOLDING ORDER OF THIS TRIBUNAL. 3.3. UNDER SUCH CIRCUMSTANCES WE DO NOT SEE ANY REASON FOR SUSTAINING THE PENALTY. 3.4. ACCORDINGLY WE DISMISS GROUND RAISED BY REVENUE. 4. IN THE RESULT APPEAL FILED BY REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 9 T H JANUARY, 2019. S D / - S D / - (PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 2 9 T H JANUARY, 2019 * GMV ITA NO. 130/DEL/2015 A.Y.2008 - 09 ITO VS. KASHYAP METALS & ALLIED INDUSTRIES LTD. 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES DATE DRAFT DICTATED ON 25.01.2019 DRAFT PLACED BEFORE AUTHOR 2 8 . 0 1 . 2 0 1 9 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 2 9 . 0 1 . 1 9 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 2 9 . 0 1 . 1 9 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.