Addl. CIT, Range-4, New Delhi V. Housing & Urban Development Corporation Ltd, New Delhi

ITA 2001/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7178 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 22-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI (THROUGH VIDEO CONFERENCING] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEM BER ITA NO. 2001/DEL/2018 [A.Y 2006-07] ITA NO. 2002/DEL/2018 [A.Y 2007-08] THE ADDL. CIT VS. HOUSING & URBAN DEVELOPMENT RANGE 4 CORPORATION LTD, HUDCO BHAWAN NEW DELHI LODHI ROAD, NEW DELHI PAN : AAACH 0632 A [APPELLANT] [RESPONDENT] DATE OF HEARING : 01.09.2021 DATE OF PRONOUNCEMENT : 01.09.2021 ASSESSEE BY : SHRI GAGAN KUMAR, ADV REVENUE BY : MS SUNITA SINGH,CIT- DR SHRI RAJESH KUMAR, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THE ABOVE TWO SEPARATE APPEALS BY THE REVENUE ARE P REFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 35, NEW DELHI DATED 15.12.2017 PERTAINING TO ASSESSMENT YEARS 2006-07 AND 2007-08 RESPECTIVELY. 2 2. SINCE BOTH THE APPEALS WERE HEARD TOGETHER, THES E ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE AND BREVITY. 3. THE COMMON GRIEVANCE IN BOTH THESE APPEALS RELAT E TO THE DELETION OF PENALTY LEVIED U/S 271(1)(C) OF THE INC OME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] AM OUNTING TO RS. 3,81,61,550/- IN A.Y 2006-07 AND RS. 2,58,49,796/- IN A.Y 2007-08. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE BROUGHT TO OUR NOTICE THAT THE QUARREL HAS ALREADY BEEN SETTLE D BY THIS TRIBUNAL IN A.YS 2009-10 AND 2005-06 IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. THE LD. DR COULD NOT BRING ANY DISTINGUISHING DE CISION IN FAVOUR OF THE REVENUE. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. ON IDENTICAL SET OF FACTS, PENALTY U/S 271(1)(C) OF T HE ACT WAS LEVIED IN A.YS 2009-10 AND 2005-06 AND THE QUARREL TRAVELLED UPTO THE TRIBUNAL 3 AND THE TRIBUNAL IN ITA NOS. 2004 AND 2000/DEL/2018 FOR A.YS 2009-10 AND 2005-06 VIDE ORDER DATED 25.08.2021 HELD AS UND ER: 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE PRESENT APPEA L IS WITH RESPECT TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IT IS AN UNDISPUTED FACT THAT AO HAS LEVIED PENALTY U/S 271(1)(C) OF TH E ACT ON THREE ISSUES STATED IN PARA 4 (I), II) & (III) HEREINAB OVE. ON ALL THE AFORESAID THREE ISSUES ON WHICH AO HAD LEVIED PENAL TY U/S 271(1)(C) OF THE ACT, WE FIND THAT THE ISSUES WERE CARRIED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT & THE HONBLE HIGH CO URT HAD ADMITTED THE APPEAL OF ASSESSEE HOLDING IT TO BE SU BSTANTIAL QUESTION OF LAW. WE FIND THE HONBLE HIGH COURT IN THE CASE OF PCIT VS. HARSH INTERNATIONAL (SUPRA) HAS HELD THAT IF THE QUANTUM ORDER ITSELF HAS BEEN CHALLENGED AND THE COURT HAS FRAMED SUBSTANTIAL QUESTIONS OF LAW IN THE APPEAL PREFERRE D BY THE ASSESSEE, IT SHOWS THAT THE ALLEGED CONCEALMENT IS NOT FINAL AND THE ISSUE IS DISPUTABLE AND IN SUCH CASES, THE PENALTY LEVIED BY THE ASSESSING OFFICER CANNOT SURVIVE. APART FROM THE AF ORESAID, WE ARE ALSO FIND THAT CIT(A) WHILE DELETING THE PENALTY HA S OBSERVED THAT THERE WAS NO CONCEALMENT OF THE PARTICULARS OF INCO ME NOR ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREFORE THE PENALTY WAS NOT LEVIABLE. BEFORE US, NO FALLACY IN THE FINDINGS OF CIT(A) HAS BEEN POINTED OUT BY THE REVENUE NOR HAS REVENUE PLACED ON RECORD ANY CONTRARY BINDING DECISION IN I TS SUPPORT. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO I NTERFERE TO THE ORDER OF CIT(A) AND THUS THE APPEAL OF THE REVENUE IS DISMISSED . 4 6. RESPECTFULLY FOLLOWING THE DECISION OF THIS TRIB UNAL [SUPRA], BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE IN ITA NOS. 2001 & 2002/DEL/2018 ARE DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01.09. 2021 IN THE PRESENCE OF BOTH THE RIVAL REPRESENTATIVES. SD/- SD/- [ KULDIP SINGH ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01 ST SEPTEMBER, 2021 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER