Sudesh Yadav, New Delhi V. ITO, Narnaul

ITA 143/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8041 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 13-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A - SMC , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 143 /DEL/2016 : ASSTT. YEAR : 2009 - 10 SUDESH YADAV, C/O P.C. YADAV, ADVOCATE, 2 ND FLOOR, 221, DDA SITE - 1, NEW RAJINDER NAGAR, DELHI - 110034 VS INCOME TAX OFFICER, WARD - 2, NARNUAL, HARYAN A (APPELLANT) (RESPONDENT) PAN NO. A BRPY5153A ASSESSEE BY : SH. P. C. YADAV, ADV. R EVENUE BY : SH. K. K. JAISWAL, DR DATE OF HEARING : 13 .0 4 .201 6 DATE OF PRONOUNCE MENT : 27 .04 .201 6 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11 .12.2015 OF LD. CIT(A) - II , GURGAON . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE SUSTENANCE OF PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED BY THE AO HAS BEEN ITA NO . 143 /DE L/2016 SUDESH YADAV 2 DELETED BY THE ITAT VIDE ORDER DATED 31.03.2016 IN ITA NO. 514/DEL/2013 (COPY OF THE SAID ORDER WAS FURNISHED). IT WAS SUBMITTED THAT SINCE THE ADDITION H AS BEEN DELETED WHICH IS THE BASIS FOR LEVYING THE IMPUGNED PENALTY, THEREFORE, THE PENALTY U/S 271(1)(C) OF THE ACT LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) MAY BE DELETED. 3. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE AUTHOR ITIES BELOW. 4 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE PENALTY HAD BEEN LEVIED BY THE AO ON THE BASIS OF THE ADDITION AMO UNTING TO RS.4,56,930/ - ON ACCOUNT OF CLAIM OF DEPRECIATION ON A TANK LORRY. THE SAID ADDITION HAS BEEN DELETED BY THE ITAT VIDE ORDER DATED 31.03.2016 IN ITA NO. 514/DEL/2013 FOR THE ASSESSMENT YEAR 2009 - 10. AS THE ADDITION ON THE BASIS OF WHICH THE IMPUG NED PENALTY WAS LEVIED , IS NOT INEXISTENCE, T HEREFORE, THE PENALTY U/S 271(1)(C) OF THE ACT LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. FOR THE AFORESAID VIEW WE ARE FORTIFIED BY THE DECISION OF THE HON BLE SUPREME COURT IN ITA NO . 143 /DE L/2016 SUDESH YADAV 3 THE CASE OF K. C. BUILDERS & ANRS. VS ACIT (2004) REPORTED AT 265 ITR 562 WHEREIN IT HAS BEEN HELD AS UNDER: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 27 /04 / 2016 ) SD/ - SD/ - ( KULDIP SINGH ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 /04 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR