UTSAV COLD STORAGE PVT. LTD., JODHPUR V. ITO, Jaipur

ITA 166/JPR/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9369 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA CIT DHK
• Assessee Lawyers: HEMANG GARGIEYA; F REHMAN ADVS
• Section: 271(1)(c)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 166/JP/2015 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 M/S UTSAV COLD STORAGE PVT. LTD., D-155, DURGA MARG, BANI PARK, JAIPUR. C UKE VS. I.T.O., WARD 3(2), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: AAACU 9306 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI HEMANG GARGIEYA & SHRI F. REHMAN (ADVS.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/07/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/07/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-I, JAIPUR DATED 05/01/2015 FOR THE A.Y. 2009-10 IN THE MATTER OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. AT THE OUTSET, THE LD AR OF THE ASSESSEE PLACED ON RECORD THE QUANTUM ORDER PASSED BY THE TRIBUNAL DATED 11/04/2019 WHEREIN ITA 166/JP/2015_ UTSAV COLD STORAGE PVT. LTD. VS. ITO 2 ADDITION FOR WHICH PENALTY HAS BEEN LEVIED WAS DELETED BY THE TRIBUNAL AND THE SAME HAS BEEN REPORTED AT 199 TTJ (JP) 409. 3. ON THE OTHER HAND, THE LD DR HAS FAIRLY AGREED THAT THE ADDITION WITH RESPECT TO WHICH PENALTY WAS LEVIED, HAS BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 11/4/2019. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS ORDER OF THE TRIBUNAL DATED 11/04/2019 AND FOUND FROM THE RECORD THAT THE PENALTY HAS BEEN LEVIED WITH RESPECT TO THE ADDITION OF RS. 1,73,29,681/- ON ACCOUNT OF ADDITION OF LONG TERM CAPITAL GAIN. WE FOUND THAT THE TRIBUNAL VIDE ITS ORDER DATED 11/04/2019 IN ITA NO. 428/JP/2013 DELETED THE ENTIRE ADDITION AND RESTORED THE INCOME AS DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME. AS THE ADDITION ITSELF HAS BEEN DELETED, THE PENALTY HAS NO LEGS TO STAND. THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. X X X X THUS IT IS A CARDINAL PRINCIPLE OF TAX LAW AS PROPOUNDED BY THE COURTS THAT LAW TO BE APPLIED WHICH IS IN FORCE IN THE RELEVANT ASSESSMENT YEAR UNLESS AND OTHERWISE PROVIDED EXPRESSLY OR BY NECESSARY ITA 166/JP/2015_ UTSAV COLD STORAGE PVT. LTD. VS. ITO 3 IMPLICATION A CLARIFICATORY AMENDMENT BY INSERTION OF AN EXPLANATION CAN BE READ INTO THE MAIN PROVISION BUT IF A CHANGE IS BROUGHT IN THE EXISTING LAW BY INSERTION OF A NEW PROVISION THEN THE SAME CANNOT BE APPLIED IN THE CASE WHEN NO SUCH LAW WAS IN FORCE AT THE RELEVANT POINT OF TIME AND, THEREFORE, A NEW TAX LIABILITY CANNOT BE CREATED BY A SUBSEQUENT AMENDMENT IN RESPECT OF A TRANSACTION AS WELL AS THE RETURN OF INCOME FILED WHEN SUCH LAW WAS NOT IN THE STATUTE BOOK. HENCE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE AMENDED PROVISIONS OF SECTION 49(1)(III)(E) CANNOT BE APPLIED IN THE CASE OF THE ASSESSEE SIMPLY BECAUSE AT THE TIME OF FILING OF THE RETURN OF INCOME THE SAID PROVISION WAS NOT IN FORCE. ACCORDINGLY, THE ADDITION SUSTAINED BY THE LD. CIT (A) BY APPLYING THE AMENDED PROVISIONS OF SECTION 49(1)(III)(E) IS NOT SUSTAINABLE AND LIABLE TO BE DELETED. WE ORDER ACCORDINGLY. 5. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE PENALTY SO IMPOSED U/S 271(1)(C) OF THE ACT, THEREFORE, WE DIRECT THE A.O. TO DELETE THE SAME. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH JULY, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS [KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH JULY, 2019 *RANJAN ITA 166/JP/2015_ UTSAV COLD STORAGE PVT. LTD. VS. ITO 4 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S UTSAV COLD STORAGE PVT. LTD., JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 3(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 166/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR