M/s. Parnika Commercial & Estates (P) Ltd., New Delhi V. Addl.CIT, New Delhi

ITA 2432/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7090 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO. 2443 /DEL/201 4 (A.Y. 2007- 08) M/S PARNIKA COMMERCIAL & ESTATES (P) LIMITED, D-64, 6 TH FLOOR, HIMALAYA HOUSE, 23, KG MARG, NEW DELHI 110 001 (PAN: AAACP0555C) VS. DCIT, CIRCLE 14(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) AND I.T.A. NO. 2432/DEL/2014 (A.Y. 2008-09) M/S PARNIKA COMMERCIAL & ESTATES (P) LIMITED, D-64, 6 TH FLOOR, HIMALAYA HOUSE, 23, KG MARG, NEW DELHI 110 001 (PAN: AAACP0555C) VS. ADDL. CIT, RANGE 14, NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : S HRI PARIKSHIT AGGARWAL, CA DEPARTMENT BY : SH. FR MEENA, SR. DR DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 1 11 10 00 0- -- -0 00 08 88 8- -- -201 201 201 2016 66 6 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 05 0505 05- -- -0 00 09 99 9- -- -201 201 201 2016 66 6 ITA NOS. 2443 & 2432/DEL/2014 2 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M ASSESSEE HAS FILED THESE TWO APPEALS AGAINST THE RESPECTIVE IMPUGNED ORDERS BOTH DATED 06.1.2014 PASSED BY THE LD. CIT( A)-XVII, NEW DELHI RELEVANT TO ASSESSMENT YEARS 2007-08 & 2008-09 RESPECTIVELY . SINCE BOTH THE APPEALS PERTAIN TO SAME ASSESSEE, HENCE, WERE HEARD TOGETHE R AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE . 2. THE GROUNDS RAISED IN ITA NO. 2443/DEL/2014 (AY 2007-08) READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE WORTHY CIT(A) IN APPEAL NO. 03/12-13 DATED 9.4.2012 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVI SIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSI TION OF THE CASE, THE WORTHY CIT(A) VIDE PARA 3 OF HIS ORDER, HAS ERRED I N CONFIRMING PENALTY OF RS. 83,39,322/- ON ACCOUNT OF DISALLOWAN CE OF DEDUCTION OF RS. 2,47,75,170/- CLAIMED BY THE APPEL LANT U/S. 80- IA(4) OF THE ACT EVEN WHEN THE APPEAL THERE AGAIN ST THE SAID QUANTUM ASSESSMENT IS PENDING ADJUDICATION BEFORE T HE HONBLE ITAT, F BENCH. ITA NOS. 2443 & 2432/DEL/2014 3 3. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITIO N, DELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE SAME. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT THE ADDITIONS ON WHICH THE ALLEGED PENALTY HAS BEEN LEV IED HAS BEEN SET ASIDE BY THE ITAT TO THE FILE OF THE AO, IN ASSESSEES OWN CASE IN RESPECT OF THE SAME ASSESSMENT YEAR I.E. 2007-08 PASSED IN ITA NO. 5724 /DEL/2010 VIDE ORDER DATED 22.7.2016. IN THIS REGARD, LD. COUNSEL OF THE ASSESSEE HAS FILED THE COPY OF THE AFORESAID ITAT ORDER DATED 22.7.2016 BEFORE US AND STATED THAT IN VIEW OF THE DECISION TAKEN IN THE ORDER DATED 22.7.2016, THE PENALTY IN DISPUTE IS NOT SUSTAINABLE IN THE EYES OF LAW. 5. ON THE CONTRARY, LD. DR HAS RELIED UPON THE ORDE RS OF THE REVENUE AUTHORITIES. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ELEVANT RECORDS, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHOR ITIES ALONGWITH THE ITAT ORDER DATED 22.7.2016 PASSED IN ITA NO. 5724/DEL/20 10 IN ASSESSEES OWN CASE FOR THE ASSTT. YEAR 2007-08. WE FIND THAT TH E ADDITIONS ON WHICH THE ITA NOS. 2443 & 2432/DEL/2014 4 PENALTY HAS BEEN LEVIED BY THE AO HAS BEEN SET ASID E BY THE TRIBUNAL VIDE ITS ORDER DATED 22.7.2016, THEREFORE, WE FIND CONSIDER ABLE FORCE IN THE CONTENTION OF THE ASSESSEES COUNSEL THAT THE PENALTY IN DISPU TE IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE, WE CANCEL THE SAME BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. HOWEVER, THE AO IS AT LIBERTY TO INITIAT E PENALTY PROCEEDINGS, IF NECESSARY, ON THE OUTCOME OF THE SET ASIDE QUANTUM ADDITION, IN ACCORDANCE WITH LAW. IN THE RESULT, THE APPEAL FILED BY THE AS SESSEE STANDS ALLOWED. 7. THE GROUNDS RAISED IN ITA NO. 2432/DEL/2014 (AY 2008-09) READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE WORTHY CIT(A) IN APPEAL NO. 85/10-11 DATED 03.1.201 1 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISI ONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 2,21,72,109 /- BY DISALLOWING LEGITIMATELY CLAIMED DEDUCTION U/S. 80- IA(4) OF THE ACT. 3. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION , DELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE SAME. ITA NOS. 2443 & 2432/DEL/2014 5 8. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 9. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT ITAT IN ASSESSEES OWN CASE IN ITA NO. 5724/DEL/2010 (AY 2 007-08) VIDE ORDER DATED 22.7.2016 HAS SET ASIDE THE SIMILAR AND IDENT ICAL ISSUE TO THE FILE OF THE AO FOR FRESH ASSESSMENT PROCEEDINGS, HENCE, HE REQUES TED THAT SIMILARLY THE PRESENT ISSUE IN DISPUTE MAY ALSO BE SET ASIDE TO THE FILE OF THE AO WITH THE SAME DIRECTIONS. IN THIS REGARD, LD. COUNSEL OF THE ASS ESSEE HAS FILED THE COPY OF THE AFORESAID ITAT ORDER DATED 22.7.2016. 10. ON THE CONTRARY, LD. DR HAS RELIED UPON THE ORD ERS OF THE REVENUE AUTHORITIES. 11. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHOR ITIES ALONGWITH THE ITAT ORDER DATED 22.7.2016 PASSED IN ITA NO. 5724/DEL/20 10 IN ASSESSEES OWN CASE FOR THE ASSTT. YEAR 2007-08. WE FIND THAT SIM ILAR ISSUE HAS ALREADY BEEN SET ASIDE BY THE ITAT TO THE FILE OF THE AO FOR FR ESH ASSESSMENT PROCEEDINGS VIDE ORDER DATED 22.7.2016. THEREFORE, RESPECTFULLY FOL LOWING THE SIMILAR REASONING AS CONTAINED IN ITAT F BENCH, NEW DELHI ORDER DAT ED 22.7.2016 PASSED IN ITA NO. 5724/DEL/2010 (AY 2007-08) IN ASSESSEES OWN CA SE, WE RESTORE THE ISSUE IN DISPUTE TO THE FILE OF THE AO WITH THE SI MILAR DIRECTIONS, AS CONTAINED IN ITA NOS. 2443 & 2432/DEL/2014 6 ITAT ORDER DATED 22.7.2016, AS AFORESAID. IN THE RE SULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE ITA NO. 2443/DEL/2014 (AY 2 007-08) IS ALLOWED IN THE AFORESAID MANNER AND ITA NO. 2432/DEL/2014 (AY 2008 -09) IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/09/2016. SD/- SD/- [ [[ [O.P. KANT O.P. KANT O.P. KANT O.P. KANT] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 05/9/2016 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES