M/s. Global Heritage Venture Ltd., New Delhi V. DCIT, New Delhi

ITA 151/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7154 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 29-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 153A; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI C.M.GARG, J.M. ITA NO: 1 5 1 /DEL/201 4 AY : - 200 9 - 10 GLOBAL HERITAGE VENTURE LTD. VS. DCIT, CENTRAL CIRCLE 12 (FORMERLY KNOWN AS M/S KRISHNA BUILDWELL & NEW DELHI DEVELOPERS PVT.LTD.) 12, RING ROAD, LAJPAT NAGAR IV NEW DELHI 110 024 PAN: AACCK 9842 M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDESH GARG, ADV. RESPONDENT BY : SH. AMRIT LAL, SR.D.R. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXXI , N EW DELHI DATED 27.11.2013 ON THE FOLLOWING GROUNDS. 1. THE LD.CIT(A), ERRED IN LAW AND FACTS BY CONFIRMED THE PENALTY OF RS.29,38,783/ - U/S 271AAA OF THE ACT. 2. THE ASSESSEE CRAVES LEAVE FOR ADDITION, MODIFICATION, DELETION, ANY OF THE GROUNDS OF APPEAL EITHER BEFORE HEARING OF APPEAL OR AT THE TIME OF APPEAL. 2. A FTER HEARING RIVAL CONTENTIONS WE FIND THAT IN THIS CASE TH E ASSESSMENT HAS BEEN COMPLETED UNDER SECTION 153C OF THE I NCOME T AX A CT , 1961( THE ACT) PENALTY IS NOT LEVIABLE UNDER SECTION 271 AAA OF THE ACT AS NO SEARCH WAS CONDUCTED ON THE ASSESSEE UNDER SECTION 132 OF THE A CT. SECTION 271 AAA OF THE A CT GETS TRIGG ERED IN ONLY THOSE CASES WHERE S EARCH HAS BEEN INITIATED ITA 151/DEL/2014 A.Y. 2009 - 10 M/S GLOBAL HERITAGE VENTURES LTD. (FORMERLY KNOWN AS M/S KRISHNA BUILDWELL & DEVELOPERS PVT.LTD.) 2 UNDER SECTION 132 OF THE ACT ON OR AFTER T HE 1 ST DAY OF JUNE , 2007 BUT BEFORE THE 1 ST DAY OF JULY , 2012. IN THE CASE OF THE ASSESSEE ONLY A SURVEY UNDER SECTION 133 A OF THE A CT WAS CARRIED OUT. ASSESSME NT WAS COMPLETED UNDER SECTION 143 OF THE A CT. 2.1. THUS THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON BLE ITAT B B ENCH , NEW DELHI IN CASE OF ONE OF THE GROUP COMPANY M/S DD R ESORTS P RIVATE LTD V S. DCIT IN ITA NO. 1103 & 1104 / DELHI / 2014 DATED 11 TH APRIL, 2016 WHERE IN AT PARA 16 IT WAS HELD AS FOLLOWS . 16. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD . WE FIND THAT IN THIS CASE, SEARCH U/S 132 OF THE ACT WAS NOT CARRIED OUT IN THE CASE OF THE ASSESSEE COMPANY WHE REAS A SURVEY WAS CARRIED OUT U / S 132 OF THE ACT WAS NOT CARRIED OUT U/S OF THE ACT AT THE PROJECT SITE OF THE ASSESSEE COMPANY, AND ADDITIONS WERE MADE ON THE BASIS OF STATEMENT RECORDED BY RAKESH KUMAR GARG OF M /S RAJDAR B AR GROUP U / S 132 (4) OF THE ACT ON THE ASSESSEE COMPANY. THE AO INITIATED PENALTY U/S 271AAA OF THE ACT AND LEVIED A PENALTY OF RS.50 LAKHS ON THE ASSESSEE COMPANY. THE ID.CIT (A) HAS UPHELD THE ORDER OF THE AO. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE ID. C I T (A) AND HAS NOW PRE FERRED AN APPEAR BEFORE US. THE SHORT QUESTION, THAT IS BEING CANVASSED BEFORE US, IS WHETHER PENALTY U/S 271AAA CAN BE LEVIED AGAINST THE ASSESSEE OR NOT. THE PENALTY U/S 271AAA CAN BE TRIGGERED ONLY IF SEARCH HAS BEEN INITIATED AGAINST THE ASSESSEE U/ S 132 OF THE ACT ON OR AFTER 1.6.2007 AND WITHIN 01 ST DAY OF JULY, 2012. NOW, THE THRUST OF THE ARGUMENT IS THAT NO SEARCH U/S 132 HAS BEEN CARRIED OUT AGAINST THE ASSESSEE COMPANY. IN ORDER TO BUTTRESS, THIS ARGUMENT OF HIS, HE HAS ALSO TAKEN OUR ATTENTION TO THE FACT THAT PURSUANT TO THE SEARCH U/S 132 O F THE ACT IN THE CASE OF M/S RAJDARBAR GROUP, SECTION 153C PROCEEDINGS WERE INITIAT E AGAINS T THE ESSESSEE COMPANY. IT WAS POINTED OUT BY THE ID. AR THAT IF THE SE ARCH HAD BEEN INITIATED U/S 132 OF THE ASSESSEE COMPANY THEN, PROCEEDINGS U/S 153A OF T HE ACT SHOULD HAVE BEEN INITIATED AGAINST THE ASSESSEE COMPANY. WE FIND THAT ON A PERUSAL OF THE ASSESSMENT ORDER; PURSUANT TO THE SEARCH CARRIED OUT AT M/S RAJDARBAR GROUP, THE PROCEEDINGS WERE INITIATED U/S ITA 151/DEL/2014 A.Y. 2009 - 10 M/S GLOBAL HERITAGE VENTURES LTD. (FORMERLY KNOWN AS M/S KRISHNA BUILDWELL & DEVELOPERS PVT.LTD.) 3 153C AGAINST THE ASSESSEE COMPANY, AND THE CA SE WAS TRANSFERRED TO THE CENTRAL CIRCLE 5, NEW DELHI U/S 127 OF THE ACT BY THE ORDERS OF CIT, CENTRAL I, NEW DELHI VIDE ORDER DT. 25.3.2010. THUS WE FIND THAT IN THE SUBMISSION OF THE LD.AR THAT NO SEARCH U/S 132 WAS INITIATED AGAINST THE ASSESSEE COMPANY AND ONLY SURVEY OPERATION U/S 133(4) WAS INITIATED AGAINST THE ASSESSEE COMPANY. IN THE FACTUAL SCENARIO, WE HAVE TO SEE WHETHER AN AO CAN INITIATE 271AAA PENALTY PROVISIONS AGAINST THE ASSESSEE COMPANY. A BARE READING OF SECTION 271AAA SHOWS THAT, THE AO MAY DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED U/S 132 WHICH CLEARLY SPELLS OUT THAT SECTION 271AAA PROVISION GET ATTRACTED ONLY IF SEARCH HAS BEEN INITIATED U/S 132 OF THE ACT. HERE, IN THIS CASE, WE FIND THAT NO SEARCH HAS BEEN CARRIED OUT AGAINST THE ASSESSEE COMPANY. SO, SECTION 271AAA CANNOT BE INITIATED AGAINST THE ASSESSEE COMPANY. THEREFORE, WE ALLOW THE CLAIM OF THE ASSESSEE AND DELETE THE PENALTY LEVIED AGAINST THE ASSESSEE U/S 271AAA OF THE ACT. 2.2. RESPECTFULLY FOLLOWING TH E DECISION OF THE CO ORDINATE B ENCH OF THE T RIBUNAL ON THE VERY SAME ISSUE , WE UPHOLD THE CONTEN TION OF THE ASSESSEE AND CANCEL THE PE NAL TY LEVIED UNDER SECTION 271 AAA OF THE A CT . I N THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. 3 . IN THE RESULT, THE APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.01.2017. SD/ - SD/ - (C.M. GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 06 TH JANUARY, 2017. *MANGA ITA 151/DEL/2014 A.Y. 2009 - 10 M/S GLOBAL HERITAGE VENTURES LTD. (FORMERLY KNOWN AS M/S KRISHNA BUILDWELL & DEVELOPERS PVT.LTD.) 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR