ITO, Ward-17(4), V. Virgo Marketing Pvt. Ltd.,

ITA 1547/DEL/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8219 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-08-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 03-05-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SAROHA
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. SUCHITRA KAMBLE , JM ITA NO. 1547/DEL/2006: ASSTT. YEAR : 2000 - 0 1 ITA NO. 1548/DEL/2 006: ASSTT. YEAR : 2001 - 0 2 INCOME TAX OFFICER, WARD - 17(4), NEW DELHI VS M/S VIRGO MARKETING PVT. LTD., A - 9, GULMOHAR PARK, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AA ACV3850A ASSESSEE BY : SH. VED JAIN , ADV. REVENUE BY : SH . A. K. SAROHA, CIT DR DATE OF HEARING : 25 . 08 .2015 DATE O F PRONOUNCEMENT : 31 .08 .2015 ORDER PER N.K. SAINI, A.M. THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE COMMON ORDER DATED 27.02.2006 OF LD. CIT(A) - XX, NEW DELHI FOR THE ASSESSMENT YEARS 2000 - 01 & 2001 - 02. 2 . COMMON ISSUES IS INVOLVED IN BOTH THESE APPEALS WHICH WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3 . THE ONLY ISSUE INVOLVED IN THESE DEPARTMENTAL APPEAL RELATES TO THE DELETION OF PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). ITA NO S . 1547 & 1548 /DEL/2006 VIRGO MARKETING PVT. LTD. 2 4. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET POINTED OUT THAT TH E ISSUES RELATING TO THE ADDITIONS ON QUANTUM FOR THE ASSESSME NT YEARS UNDER CONSIDERATION HAVE BEEN SET ASIDE BY THE ITAT DELHI BENCH H , NEW DELHI IN ITA NOS. 644 & 645/DEL/2004 FOR THE ASSESSMENT YEARS 2000 - 01 & 2001 - 02 VIDE ORDER DATED 31.07.2015 (COP Y OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON THE RECORD). THE LD. DR IN HIS RIVAL SUBMISSIONS SUBMITTED THAT WHEN THE ISSUE RELATING TO THE ADDITIONS HAS BEEN RESTORED TO THE AO FOR FRESH ADJUDICATION THEN THE ISSUE RELATING TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT MAY ALSO BE RESTORED TO THE AO. 5 . IN HIS REJOINDER THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE TWO SEPARATE AND DISTINCT PROCEEDINGS. THEREFORE, EVEN IF THE ISSUE RELATING T O ADDITION HAS BEEN RESTORED TO THE AO, THESE APPEALS BEING RELATED TO THE PENALTY U/S 271(1)(C) OF THE ACT MAY BE DISPOSED OFF INDEPENDENTLY. 6 . 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 ITA NO S . 1547 & 1548 /DEL/2006 VIRGO MARKETING PVT. LTD. 3 ISSUE RELATING TO THE ADDITIONS WHICH ARE THE BASIS FOR LEVYING THE PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN RESTORED TO THE AO VIDE ORDER DATED 31.07.2015 IN ITA NOS. 644 & 645/DEL/2004 IN THE ASSESSEE S OWN CASE AND THE RELEVANT FINDINGS HAS BEEN GIVEN IN PARA 7.1 OF THE SAID ORDER WHICH READ AS UNDER: 7.1 AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS AVAILABLE ON RECORD, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES, WRITTEN SYNOPSIS FILED BY THE ASSESSEE AND THE ORDER OF THE HON BLE JURISDICTIONAL HIGH COURT DATED 24.01.2014 AS AFORESAID, WE ARE OF THE VIEW THAT THE HON BLE JURISDICTIONAL HIGH COURT HAS REMANDED THE MATTER TO THE TRIBUNAL FOR EXAMINATION DE NOVO UNINF LUENCED BY THE EARLIER ORDER. KEEPING IN VIEW OF THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE OBSERVATIONS OF THE REVENUE AUTHORITIES ON THE ISSUE IN DISPUTE, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE IN DISPUTE REQUIRE EXAMINATION DE NOVO AT THE LEVEL OF THE ASSESSING OFFICER. THEREFORE, WE REMAND BACK THE ISSUES IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER, FOR EXAMINATION DE NOVO AND ALSO CONSIDER THE AVERMENTS MADE IN ASSESSEE S SYNOPSIS AS REPRODUCED IN PARAS 5 & 5.1 AT PAGE NO. 2 TO 9 OF THIS ORDER AND DECIDE ACCORDINGLY, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE 7 . FROM THE ABOVE OBSERVATIONS OF THE ITAT DELHI BENCH H , NEW DELHI, IT IS CLEAR THAT THE ISSUES RELATING TO THE ITA NO S . 1547 & 1548 /DEL/2006 VIRGO MARKETING PVT. LTD. 4 ADDITIONS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION HAVE BEEN REMANDED BACK TO THE AO. IT IS WELL SETTLED THAT THE ADDITIONS ALTHOUGH ARE NOT CONCLUSIVE FOR LEVYING THE PENALTY BUT THESE ARE RELEVANT. I N THE PRESENT CASE, THE PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED ONLY ON THE BASIS OF THE ADDITIONS WHICH HAVE BEEN REMANDED BACK TO THE FILE OF THE AO. THEREFORE, WE DEEM IT APPROPRIATE TO RESTORE THE ISSUE RELATING TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ALSO TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, APPEAL S OF THE DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 31 /08 / 2015) . SD/ - SD/ - (SUCHITRA KAMBLE ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 /08 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR