M/s. Agache Associates Limited, New Delhi V. ITO, New Delhi

ITA 2251/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4411 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SH. R.K PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.2251/DEL/2016 ASSESSMENT YEAR: 2008-09 M/S. AGACHE ASSOCIATES C/O M/S. S. P. JAIN AND ASSOCIATES, 303-305, BHANOT HOUSE-17, YUSUF SARAI, COMMERCIAL COMPLEX NEW DELHI 110049 PAN AAACA9911H VS ITO COMPANY WARD 1 (2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. ANIL JAIN, CA RESPONDENT BY SH. SURENDER PAL, SR. DR DATE OF HEARING: 12/02/2019 DATE OF PRONOUNCEMENT: 15/02/2019 ORDER PER R.K. PANDA, AM: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 05.01.2016 OF THE CIT(A)-I, NEW DELHI R ELATING TO A. Y. 2008-09. 2. LEVY OF PENALTY OF RS.6 LACS BY THE ASSESSING OF FICER U/S 271 (1) (C ) OF THE ACT WHICH HAS BEEN UPHELD BY THE C IT(A) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPE AL. ITA NO.2251/DEL/2016 2 3. THE LD. COUNSEL FOR THE ASSESEE AT THE OUTSET SU BMITTED THAT AS AGAINST RETURNED INCOME OF RS.35,580/- THE ASSES SING OFFICER COMPLETED THE ASSESSMENT U/S 143 (3) (III) OF THE A CT ON 26.11.2010 DETERMINING THE TOTAL INCOME OF RS.18,98 ,109/-. IN APPEAL THE LD. CIT (A) CONFIRMED THE VARIOUS ADDITI ONS MADE BY THE ASSESSING OFFICER. SUBSEQUENTLY THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE IT A CT AND LEVIED PENALTY OF RS. 6 LACS U/S 271 (1) (C) OF THE IT ACT . REFERRING TO THE COPY OF THE ORDER OF THE TRIBUNAL DATED 17.08.2017, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNA L IN THE QUANTUM APPEAL FOR ASSESSMENT YEARS 2005-06, 2008-0 9 AND 2011-12 IN ITA NOS.1036/DEL/2014, 2232/DEL/2014 AND 4376/DEL/2014 HAS RESTORED THE ISSUE BACK TO THE FI LE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. SINCE T HE VERY BASIS ON WHICH PENALTY WAS LEVIED HAS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER BY THE TRIBUNAL, THEREFORE, THE P ENALTY ORDER HAS NO LEGS TO STAND. HE ACCORDINGLY SUBMITTED THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT ( A) SHOULD BE DELETED. 4. THE LD. DR ON THE OTHER HAND WHILE CONCEDING THA T THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFF ICER SUBMITTED THAT THIS MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BEL OW. IT IS AN ADMITTED FACT THAT THE TRIBUNAL VIDE ORDER DATED 17 .08.2017 HAS RESTORED THE QUANTUM APPEAL TO THE FILE OF THE ASSE SSING OFFICER FOR FRESH ADJUDICATION. THEREFORE, THE VERY BASIS ON WHICH PENALTY ITA NO.2251/DEL/2016 3 WAS LEVIED DOES NOT SURVIVE. THEREFORE, PENALTY LEV IED BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) IS LI ABLE TO BE CANCELLED. WE ACCORDINGLY DIRECT THE ASSESSING OFF ICER TO CANCEL THE PENALTY SO LEVIED U/S 271 (1) (C) OF THE IT ACT . HOWEVER, THE ASSESSING OFFICER IS AT LIBERTY TO INITIATE FRESH P ENALTY PROCEEDINGS AFTER THE ORDER IS PASSED BY HIM IN THE LIGHT OF TH E DIRECTION OF THE TRIBUNAL. THE APPEAL FILED BY THE ASSESSEE IS ACCO RDINGLY ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.02.2019 SD/- SD/- (SUCHITRA KAMBLE) (R. K PANDA) JUDICIAL MEMBER ACCOUNTA NT MEMBER *NEHA* DATE:- 15.02.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 12.02.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING 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 15.02.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER