I.T.O. Ward -1, Yavatmal V. SMT ANJALI ANIL BAJORIA,

ITA 247/NAG/2015

• Counselvise Citation: [2014] 117 COUNSELVISE.COM (IT) 8879 (ITAT-NAGPUR)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 23-10-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K BARAL
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 247 / NAG/2015 ASSESSMENT Y EAR: 2008 - 09 THE ITO, WARD - 1 , PATRAKAR COLONY, YAVATMAL 445001 VS. SMT. ANJALI ANIL BAJORIYA, NEA R - SHITALA MATA MANDIR, DIGRAS, DIST - YAVATMA - 445203 PAN: AEQPB8785D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI R.K. BARAL (SR. D R) ASSESSEE BY : SHRI MAHAVIR ATAL ( AR ) DATE OF HEARING: 11 /05 /201 8 DATE OF PRONOUNCEMENT: 11 / 05 /201 8 O R D E R PER RAM LAL NEGI, JM T HE REVENUE HAS PREFERRED THIS APPEAL AGAINST THE ORDER DATED 24.06.2015 PASSED BY THE COMMIS SIONER OF INCOME TAX (APPEALS) - II , NAGPUR, WHEREBY THE LD. COMMISSIONER (APPEALS) HAS A LLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED UNDER SECTION 271 (1) (C) OF INCOME TAX ACT (FOR SHORT THE ACT) AND DELETED THE PENALTY OF RS. 20,55,195 / - LEVIED UNDER THE SAID SECTION. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORD ER PASSED BY THE LD.CIT (A) ON THE FOLLOWING GROUNDS : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT (A) ERRED IN DELETING THE PENALTY LEVIED U/S 271 (1)(C) AT RS. 20,55,195 / - AS THE PENALTY ORDER HAS NO LEGS TO STAND. 2. ON THE FAC TS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT (A) ERRED IN HOLDING THAT SINCE THE QUANTUM 2 ITA NO. 247 / NAG /2015 ASSESSMENT YEAR: 2008 - 09 ADDITION CONFIRMED BY HONBLE CIT (A) STANDS DELETED BY HONBLE ITAT, THE PENALTY ORDER HAS NO LEGS TO STAND IGNORING THE FACT THAT THE REVENUE HAS FIL ED APPEAL BEFORE HONBLE COURT AGAINST THE ORDER OF HONBLE ITAT IN QUANTUM APPEAL. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT SINCE THE ITAT HAS DELETED THE ADDITION MADE BY THE AUTHORITIES BELOW IN QUANTUM APPEAL VIDE ORD ER DATED 14.11.2014 AND THE HONBLE HIGH COURT HAS CONFIRMED THE ORDER OF THE TRIBUNAL, THE PENALTY ORDER DOES NOT SURVIVE. THEREFORE, THERE IS NO INFIRMITY IN IMPUGNED ORDER PASSED BY THE LD. CIT(A). HENCE, THE APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED . 4. THE LD. DEPARTMENTAL REPRESENTATIVE D ID NOT OPPOSE THE AFORESAID FACT S THAT THE ITAT HAS DELETED THE ADDITION SUSTAINED BY THE AUTHORITIES BELOW IN QUANTUM APPEAL AND THE HON BLE HIGH COURT HAS AFFIRMED THE ORDER PASSED BY THE ITAT. 5. WE H AVE PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. WE NOTICE THAT THE AO LEVIED PENALTY OF RS. 20,55,195/ - ON THE BASIS OF ADDITIONS MADE VIDE ASSESSMENT ORDER DATED 17.12.2010 FOR THE ASSESSMENT YE AR 2008 - 09. THE LD. CIT(A) DELETED THE PENALTY IN APPEAL HOLDING THAT SINCE THE ITAT HAS DELETED THE ADDITION IN THE QUANTUM APPEAL ITA NO 210/NAG/2012, THE PENALTY ORDER DOES NOT SURVIVE. THE HO NB LE HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF THE COORDINATE BENCH RENDERED IN QUANTUM APPEAL HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVE THE PRESENT APPEAL. 6. SINCE, THE ADDITION , ON THE BASIS OF WHICH THE AO HAD LEVIED PENALTY, HAS BEEN DELETED BY THE COORDINATE B ENCH AND THE HONBLE HIGH COURT HAS CONFIRMED THE FINDINGS OF THE COORDINATE BENCH, THE PENALTY ORDER PASSED BY THE AO DOES NOT SURVIVE. HENCE, THERE IS NO INFIRMITY IN THE IMPUGNED ORDER TO 3 ITA NO. 247 / NAG /2015 ASSESSMENT YEAR: 2008 - 09 INTERFERE WITH THE SAME. WE, THEREFORE UPHOLD THE ORDER PASSED BY THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271 (1)(C) OF THE ACT. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2008 - 2009 ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MAY, 2018 . S D/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 11 / 0 5 /201 8 ALINDRA, PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE . BY ORDER, //TRUE COP Y// ( SR. PS/PS ) ITAT, NAGPUR