Soodan Informatics & Marketing Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 1421/DEL/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6654 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 15-02-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 01-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RASMITA JHA
• Assessee Lawyers: RAHUL KOCHAR
• Keywords: Reassessment proceedings

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SH. G.D. AGRAWAL V.P. AND SH. C.M. GARG, J.M ITA NO. 1421 /DEL/201 0 ASSTT. YEAR: 2000 - 01 ITA NO . 5620/DEL /2011 [ASSESSMENT YEAR: 2000 - 01] ITO VS. SOODAN INFORMATICS & MARKETING WARD 9 (1) PVT. LTD, D - 52, NEW DELHI EAST OF KAILASH, NEW DELHI PAN : AAHCS 0181 L [APPELLANT] [RESPONDENT] APPELLANT - ASSESSEE BY : SH RI RAHUL KOCHAR, ADV . RESPONDENT BY : SMT. RASMITA JHA SR. DR DATE OF FINAL HEARING : 15 .02.2016 DATE OF PRONOUNCEMENT : 29 .0 2.2016 ORDER PER C.M. GARG, JM ITA NO. 1421/DELHI/201 0 FOR AY 2000 - 01 THIS APPEAL BY THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF THE COMMISSIONER OF THE INCOME TAX (APPEALS) X II , NEW DELHI ORDER SOODAN INFORMATICS & MARKETING PVT. LTD. D - 52, EAST OF KAILASH NEW DELHI VS ITO WARD 9(1) N EW DELHI APPELLANT RESPONDENT PAN NO. AAHCS0181L SOODAN INFORMATICS & MARKETING PVT. LTD. D - 52, EAST OF KAILASH NEW DELHI VS ITO WARD 9(1) NEW DELHI APPELLANT RESPONDENT PAN NO. AAHCS0181L SOODAN INFORMATICS & MARKETING PVT. LTD. D - 52, EAST OF KAILASH NEW DELHI VS ITO WARD 9(1) NEW DELHI APPELLANT RESPONDENT PAN NO. AAHCS0181L SOODAN INFORMATICS & MARKETING PVT. LTD. D - 52, EAST OF KAILASH NEW DELHI VS ITO WARD 9(1) NEW DEL HI APPELLANT RESPONDENT 2 D A T E D 10.12.2009 PASSED IN FIRST APPEAL NO. 219/08 - 09 FOR ASSESSMENT YEAR 20 00 - 01 . 2. THE SOLE GROUND RAI SED BY THE REVENUE READS AS UNDER: 1. THE ORDER OF THE LD CIT(A) IS BAD IN LAW AND ON FACTS BASED ON SURMISES AND CONJECTURES NOT BASED ON ANY EVIDENCE AND IS OPPOSED TO THE EVIDENCES ON RECORD. 2. THE ORDER OF THE LD CIT(A) IS BAD IN LAW ON FACTS BECAUSE AS IT HAS MERELY CONFIRMED THE ORDER OF THE AO WHO HAD NOT GIVEN EFFECT TO/COMPLIED WITH THE ORDER OF THE HON BLE ITAT DATED 11.01.2008. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTIONS OF THE LD. AO WHO HAD REJECTED THE CONTENTIONS AS PLACED B EFORE HIM WITHOUT CALLING FOR THE EVIDENCE AS INCUMBENT UPON HIM AND WITHOUT POINTING OUT BY GOOD AND ACCEPTABLE REASONS AS TO WHY AND HAD CHOSEN NOT TO FOLLOW THE INSTRUCTIONS GIVEN IN THE ORDER OF THE HON BLE ITAT DATED 11.01.2008. 4. THE ORDER THE LD. CIT(A) IS BAD IN LAW AND ON FACTS BY CONFIRMING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WHO HAD ERRED IN MAKING THE ADDITION OF RS. 40,44,254/ - . 3 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIALS PLACED BEFORE US ON RECORD. THE LD. ASSESSEE S REPRESENTATIVE (AR) SUBMITTED THAT IN THE FIRST ROUND OF PROCEEDINGS THE ITAT VIDE ORDER DATED 11.01.2008 PASSED IN ITA NO. 1649/DELHI/04 RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LD AR POINTED OUT THAT THE TRIBUNAL DIRECTED THAT THE RATES OF LOCAL CONSTRUCTIONS OF AS PER THE PWD RATES IS TO BE ADOPTED AND NECESSARY ADJUSTMENT SHOULD BE MADE WHILE ARRIVING AT THE COST OF THE CONSTRUCTION BUT THE ASSESSING OFFICER STARTED REASSESSMENT PROCEEDINGS ON 15.12.2008 AND WITHIN EIGHT DAYS AFTER GIVING LAST OPPORTUNITY ON 23.12.2008 CLOSED THE PROCEEDING AND PASSED IMPUGNED ORDER ON 31.12.2008 WITHOUT ANY CHANGE AND SIMILAR TO THE EARLIER ASSESSMENT ORDER WHICH WAS SET ASIDE BY THE TRIBUNAL. THE LD AR FURTHER DRAWN OUR ATTENTION TOWARDS FIRST APPELLANT ORDER AND SUBMITTED THAT THE CIT(A) WITHOUT CONSIDERING THE EXPLANATION OF THE ASSESSEE ACCEPTED THE CONCLUSION OF THE AO THAT ASSES SEE FAILED TO GET LOCAL PWD RATES EVEN THOUGH HE WAS GIVEN SPECIFIC OPPORTUNITY AND DISMISSED APPEAL OF THE ASSESSEE NOT FOLLOWING THE DIRECTIONS OF THE TRIBUNAL. THUS, IT WAS CONTENDED BY 4 THE LD AR NEITHER THE AO NOR THE CIT(A) GRANTED DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREFORE DIRECTIONS OF THE TRIBUNAL WERE NOT GIVEN ANY HEAL OF ATTENTION BY THE AUTHORITIES BELOW. IN THE LIGHT OF ABOVE FACTS AND LD AR SUBMITTED THAT IN THE SECOND ROUND OF THE PROCEEDING NEITHER THE AO NOR THE CIT(A) FOLLOW ED THE DIRECTIONS OF THE TRIBUNAL THEREFORE, THE CASE SHOULD BE REMANDED BACK TO THE FILE OF THE AO WITH A DIRECTION THAT MATTER SHOULD BE ADJUDICATED AFRESH AS PER DIRECTION IN THE TRIBUNAL DATED 11.01.2008 (SUPRA). 4. THE LD DR SUPPORTED THE ACTION OF T HE AUTHORITIES BELOW AND SUBMITTED THAT WHEN DESPITE OF DUE OPPORTUNITY THE ASSESSEE S DID NOT SUBMIT PWD RATES THEN THERE WAS NO ALTERNATE BEFORE THE AO BUT TO ADJUDICATE THE TIME BARRING CASE AS PER MATERIAL AVAILABLE ON RECORD. THE LD DR ALSO POINTED OU T THAT THE ASSESSEE WAS GIVEN DUE OPPORTUNITY OF HEARING BY THE FIRST APPELLANT AUTHORITY AND THE AO HAS RIGHTLY POINTED OUT THAT CPWD AND UPPWD ARE BOTH GOVERNMENT ORGANIZATION AND THERE ARE HARDLY ANY DIFFERENCE BETWEEN THEM, THEREFORE, CONCLUSION OF THE CIT(A) DESERVES TO BE UPHELD. HOWEVER, SHE FAIRLY ACCEPTED THAT THE ASSESSING OFFICER CONCLUDED THE 5 PROCEEDINGS WITHIN EIGHT DAYS AND PASSED AN ORDER IN A HASTY MANNER, THEREFORE, IF IT IS FOUND APPROPRIATE THEN THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE MATTER IS AGAIN RESTORED TO THE FILE OF THE AO TO ADJUDICATE THE CASE AFRESH AS PER DIRECTIONS OF THE TRIBUNAL ORDER DATED 11.01.2008 (SUPRA) PASSED IN FIRST ROUND OF PROCEEDINGS. 5. IN VIEW ABOVE SUBMISSIONS OF BOTH THE SIDES ON PERUSAL OF THE ASSES SMENT ORDER AS WELL AS FIRST APPELLANT ORDER PASSED IN PURSUANT TO THE ORDER OF THE TRIBUNAL (SUPRA) THEN IT IS AMPLE CLEAR THAT THE AO CALLED THE ASSESSEE S REPRESENTATIVE WHO APPEARED BEFORE HIM ON 15.12.2008 AND AFTER GIVING SOME DAYS OPPORTUNITY THE AO CLOSE THE HEARING ON 23.12.2008 AND PASSED THE ORDER ON 31.12.2008 IN THE SAME LINE AS WAS PASSED IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE AO AS WELL AS THE CIT(A) WERE NOT CORRECT IN HOLDING THAT THERE IS HARDLY ANY DIFFERENCE IN THE CPWD AND UPPWD RA TES THEREFORE THEY DECIDED THE ISSUE AGAINST THE ASSESSEE IN THE SIMILAR MANNER AS WAS DECIDED IN THE ORIGINAL PROCEEDINGS. THEREFORE, TO MEET THE ENDS OF JUSTICE, WE FIND IT APPROPRIATE TO RESTORE THE ISSUE AGAIN TO THE FILE OF THE AO WITH A DIRECTION THA T HE SHALL DECIDE THE ISSUE AS 6 PER DIRECTIONS OF THE TRIBUNAL ORDER 11.01.2008 (SUPRA) AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND WITHOUT BEING PREJUDICE WITH THE EARLIER ASSESSMENT ORDERS AND IMPUGNED ORDER OF THE CIT(A). WE ORDERED AC CORDINGLY. CONSEQUENTLY, APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. SINCE THERE WOULD BE THIRD ROUND OF PROCEEDINGS BEFORE THE AO THEREFORE THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE AO ON 04.04.2016 AT 11 A.M. TO TAKE FURTHER INSTRUCTIONS ABOUT THE RE - HEARING OF THE CASE AS PER OUR DIRECTIONS AS MENTIONED HEREINABOVE. ITA NO. 5620/DELHI/2011 FOR AY 2000 - 01 7. IN THIS APPEAL THE REVENUE HAS CHALLENGED ORDER OF THE CIT(A) DATED 26.09.2011 BY WHICH SHE DELET ED THE PENALTY IMPOSED ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE ACTS BUT SINCE BY THE EARLIER PART OF THIS ORDER WE HAVE RESTORED THE ISSUE TO FILE OF THE AO FOR AFRESH ADJUDICATION THEREFORE, APPEAL OF THE REVENUE CHALLENGING THE DELETION OF PENALTY IMPOSED ON THE SAME ISSUE BECOMES ACADEMIC AND INFRUCTUOUS AND WE DISMISSED THE SAME HAVING 7 BECOME INFRUCTUOUS. BEFORE, WE PART WITH THE ORDER WE FIND IT APPROPRIATE TO MAKE IT CLEAR THAT THE DEPARTMENT WOULD NOT BE PREVENTED IN INITIATING PENALTY PROCEED INGS AS PER OUTCOME OF THE ORDER OF THE AO IN THE THIRD ROUND AS PER RELEVANT FACTS AND CIRCUMSTANCES AND PROVISIONS OF THE ACT. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE REVENUE AGAINST TH E DELETION OF PENALTY IS DISMISSED BEING INFRUCTUOUS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 / 02/2016 S D / - S D / - (G. D. AGRAWAL) (C.M GARG) VICE PRESIDENT JUDICIAL MEMBER DATED : 29 TH FEBRUARY 2016. *RES. DESKTOP COPY FORWARDED TO: 1 . APPE LLANT 2 . RESPONDENT 3 . CIT 4 . CIT (APPEALS) 5 . DR: ITAT