Smt. Meera Kapoor, New Delhi V. ACIT, New Delhi

ITA 1925/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0227 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-02-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 29-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH SONKAR
• Assessee Lawyers: ASHWANI TANEJAF
• Keywords: Principle of natural justice
• Section: 271(1)(c); 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E DELHI BEFORE SHRI R. P. TOLANI AND SHRI K.G. BANSAL ITA NO. 1925 (DEL)/2010 ASSESSMENT YEAR: 1995-96 SMT. MEERA KAPOOR, ASSTT . COMMISSIONER OF INCOME C/O M/S RRA TEXINDIA, VS. TAX, CIRCL E 28(1), NEW DELHI. D-28, SOUTH EXTENSION, PART-I, NEW DELHI-49. PAN-AAZPK4691A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI TANEJA,F CA & SHRI TARUN KUMAR, ADVOCATE RESPONDENT BY : SHRI PIYUSH SONKAR, SR. DR ORDER PER K.G. BANSAL : AM THIS APPEAL EMANATES FROM THE ORDER OF THE CIT (APPEALS)-XXV, NEW DELHI, PASSED IN APPEAL NO. 308/08-09 ON 26 TH FEBRUARY, 2010, AND IT PERTAINS TO ASSESSMENT YEAR 1995-96. THE CORRE SPONDING ORDER OF PENALTY WAS FRAMED BY THE ASSISTANT COMMISSIONER OF INCO ME-TAX, CIRCLE 28(1), NEW DELHI, ON 30.01.2009 UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING THE ACTION OF ITA NO. 1925(DEL)/2010 2 LD. AO IN IMPOSING A PENALTY OF RS. 12,35,154/- A ND THAT TOO WITHOUT RECORDING MANDATORY SATISFACTION AS PER LAW. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING THE ACTION OF LD. AO IN LEVYING PENALTY OF RS. 12,35,154/- WIT HOUT ASSUMING JURISDICTION AS PER LAW AND THE IMPUGNED PENALTY OR DER IS ILLEGAL AND VOID AB-INITIO. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED PENALTY ORDER B EING CONTRARY TO LAW AS THE ASSESSMENT ORDER FRAMED U/S 143( 3)/147 DATED 26.03.2003 WAS ALSO ILLEGAL, BEYOND JURISDICTION AND VOID AB-INITIO. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271(1)(C) ON THE ADDITIONS MADE IN THE ASSESSMENT ORDER DATED 26.03.2003 AS THE SE ADDITIONS ARE ALSO CONTRARY TO LAW AND FACTS. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFI RMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271(1)(C) AND T HE SAME IS BAD IN LAW, BEING BEYOND JURISDICTION AND BARRED BY LIM ITATION AND CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND HAS BEEN PASSED BY RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT GIVIN G ADEQUATE OPPORTUNITY TO THE ASSESSEE. 2. BEFORE US, THE LD. COUNSEL SUBMITTED THAT TH E ASSESSMENT WAS FRAMED ON 26.03.2003 U/S 143(3) READ WITH SECTI ON 147. IN THE COURSE OF THESE PROCEEDINGS, PENALTY U/S 271(1)(C) IS INI TIATED. CONSEQUENTLY, THE PENALTY WAS LEVIED ON 30.1.2009. THE NOTICE IS SUED U/S 148 FOR MAKING THE ASSESSMENT, HAS BEEN CANCELLED BY THE HONB LE DELHI HIGH COURT IN ITA NO. 1925(DEL)/2010 3 ITA NO. 1395/2008 DATED 3.8.2009, A COPY OF WHICH HAS BEEN PLACED ON RECORD. IN VIEW OF THIS, THE LD. DR DID NOT ARG UE THE MATTER ANY FURTHER. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE JUDGMENT OF THE HONBLE DELHI HI GH COURT IN RESPECT OF NOTICE U/S 148 READS AS UNDER:- ITA NO. 1395/2008 FOLLOWING ORDER WAS PASSED ON 3 RD AUGUST, 2009:- NOTICE. MR. SANJEEV SABHARWAL, ADVOCATE ENTERS APPEARANCE ON BEHALF OF THE APPELLANT AND ACCEPTS THE NOTICE. IT IS CONTENDED BY THE LEARNED COUNSEL FOR THE APP ELLANT THAT NOTICE UNDER SECTION148 WAS ISSUED BY THE ACIT , CIRCLE 30(1), NEW DELHI HAD NO JURISDICTION IN THE MATTER. IT IS ALSO CLEAR FROM THE FACT THAT FINALLY THE ASSESSMENT IS MADE BY THE ACIT, CIRCLE 28(1). HIS ARGUMENT IS THAT THE LEARNED TRIBUN AL HAS TAKEN NOTE OF THE WRONG FACTS IN THIS BEHALF AND IN SUPPORT OF H IS SUBMISSION THAT AFTER RESTRUCTURING OF THE DEPARTMENT, THE ERSTWH ILE CIRCLE 7(1), NEW DELHI, WAS REDESIGNATED AS CIRCLE 30(1), NEW DE LHI, LEARNED COUNSEL HAS PRODUCED THE COPIES OF THE NOTIFICATI ON. MR. SANJEEV SABHARWAL WANTS TO LOOK INTO THIS ASPECT. LIST ON 20 TH JANUARY, 2010. AS IS CLEAR FROM THE AFORESAID ORDER, THE LD. CO UNSEL FOR THE APPELLANT HAS RAISED CONTENTION THAT THE ASSESSI NG OFFICER HAS MADE ASSESSMENT WITHOUT ANY JURISDICTION TO DEAL WITH THE MATTER. MR. SABHARWAL, LEARNED COUNSEL FOR THE RESPONDENT CON CEDES THAT AS ON DATE WHEN NOTICE UNDER SECTION 148 OF THE INCOM E-TAX ACT WAS ITA NO. 1925(DEL)/2010 4 ISSUED BY THE ACIT, CIRCLE 30(1), NEW DELHI, HE HA S NO INSTRUCTION TO ISSUE NOTICE ON THAT DATE. 3.1 AS THE NOTICE HAS BEEN CANCELLED BY THE HONBLE JURISDICTIONAL HIGH COURT, THE ASSESSMENT DOES NOT SURVIVE. CONSEQU ENTLY, THE PENALTY ALSO DOES NOT SURVIVE AS IT HAS NO LEGS TO STAND UP ON. 4. IN THE RESULT, THE APPEAL IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11 MARCH, 2011. SD/- SD/- (R. P. TOLANI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 11TH MARCH, 2011. SP SATIA COPY OF THE ORDER FORWARDED TO: SMT. MEERA KAPOOR, NEW DELHI. DCIT, CENTRAL CIRCLE 4, NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REG ISTRAR.