M/s. Employees Provident Fund Organization, Delhi V. ACIT, New Delhi

ITA 2660/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0760 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 05-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JANARDAN DAS
• Assessee Lawyers: MILIND GARG

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NOS:- 2659 & 2660/DEL/2015 ( ASSESSMENT YEARS: 2008-09 & 2009-10) M/S EMPLOYEES PROVIDENT FUND ORGANIZATION REGIONAL OFFICE DELHI(SOUTH), EPFO COMPLEX, SEC-23, PLOT NO.- 23, DWARKA, DELHI. VS. ACIT, CIRCLE 51(1), NEW DELHI. PAN NO: AAATE3890L APPELLANT RESPONDENT ASSESSEE BY : SH. PANKAJ GARG, ADV & SH. MILIND GARG, ADV. REVENUE BY : SH. JANARDAN DAS, SR. DR ORDER PER: ANADEE NATH MISSHRA, AM THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEALS:- FOR A.Y. 2008-09 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CI T(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY ORDER OF ACIT, CIRCLE 51(1), NEW DELHI U/S 221(1) AS PER WHICH ASSESSING OFFICER HAS LEVIED PENALTY RS. 5,00 ,000/-. 2 ITA NOS. -2659 & 2660/DEL/2015. EMPLOYEES PROVIDENT FUND ORGANIZATION REGIONAL OFFI CE DELHI. 2. THAT ON THE FACTS AND UNDER THE LAW, THE CIT(A) ERR ED IN NOT APPRECIATING THAT THE DEFAULT IN PAYMENT OF ARREARS OF TAX WAS FOR GO OD AND SUFFICIENT REASONS AND THEREFORE NO PENALTY SHOULD HAVE BEEN LEVIED U/ S 221(1) OF THE IT ACT, 1961. 3. THAT ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIF IED ON FACTS AND SAME ARE BAD IN LAW. FOR A.Y. 2009-10 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CI T(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY ORDER OF ACIT, CIRCLE 51(1), NEW DELHI U/S 221(1) AS PER WHICH ASSESSING OFFICER HAS LEVIE D PENALTY RS. 5,00,000/-. 2. THAT ON THE FACTS AND UNDER THE LAW, THE CIT(A) ERR ED IN NOT APPRECIATING THAT THE DEFAULT IN PAYMENT OF ARREARS OF TAX WAS FOR GO OD AND SUFFICIENT REASONS AND THEREFORE NO PENALTY SHOULD HAVE BEEN LEVIED U/ S 221(1) OF THE IT ACT, 1961. 3. THAT ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIF IED ON FACTS AND SAME ARE BAD IN LAW. 2. THESE APPEALS ARE FILED AGAINST THE ORDERS U/S 2 21(1) OF IT ACT FOR ASSESSMENT YEARS 2008-09 (F.Y.2007-08) & 2009-10 (F.Y. 2008-09 ) LEVYING PENALTY AMOUNTING TO RS. 5,00,000/- IN EACH OF THE TWO AFORESAID ASSESSM ENT YEARS. FOR BOTH THESE ASSESSMENT YEARS, ORDERS U/S 201 R.W.S. 201(1A) OF THE ACT WERE PASSED BY THE ASSESSING OFFICER DETERMINING TAX LIABILITY OF RS. 7899.85 LACS FOR FINANCIAL YEAR 2008-09 (A.Y. 2009-10) AND RS. 6193.69 LACS FOR FINANCIAL Y EAR 2007-08 (A.Y. 2008-09). AGAINST THE TWO AFORESAID ORDERS U/S 201 R.W.S. 201(1A) OF THE IT ACT, THE ASSESSEE FILED APPEALS BEFORE THE LD. CIT(A). THE MATTER TRAVELE D UP TO INCOME TAX APPELLATE TRIBUNAL (ITAT). VIDE CONSOLIDATED ORDER DATED 03/0 8/2016 IN ITA NOS. 2415/DEL/2015 & 2416/DEL/2015 PERTAINING TO ASSESSMENT YEARS 2008 -09 AND 2009-10 THE DELHI BENCH OF ITAT SET ASIDE THE ORDER OF LD. CIT(A) AND RESTO RED THE MATTER TO THE FILE OF THE 3 ITA NOS. -2659 & 2660/DEL/2015. EMPLOYEES PROVIDENT FUND ORGANIZATION REGIONAL OFFI CE DELHI. ASSESSING OFFICER WITH CERTAIN DIRECTIONS. IT WAS INFORMED TO US, AT THE TIME OF HEARING, BY LD. COUNSEL FOR ASSESSEE THAT THE CONSEQUENTIAL FRESH ORDERS U/S 201 R.W.S. 201(1A) OF IT ACT HAVE NOT BEEN PASSED BY THE ASSESSING OFF ICER TILL DATE. 3. IN THE MEANTIME, VIDE SEPARATE ORDERS, EACH DATE D 16.03.2012 U/S 221(1) OF IT ACT, THE ASSESSING OFFICER ALSO IMPOSED PENALTY AMO UNTING TO RS. 5,00,000/- FOR EACH OF FINANCIAL YEAR 2007-08 (ASSESSMENT YEAR 2008-09) AN D FINANCIAL YEAR 2008-09 (ASSESSMENT YEAR 2009-10). THE ASSESSEES APPEALS AGAINST THE AFORESAID ORDERS U/S 221(1) OF I.T ACT WERE DISMISSED BY THE LD. CIT(A) BY ORDER DATED 16.02.2015 FOR FINANCIAL YEAR 2008-09 (A.Y. 2009-10) AND ORDER DAT ED 17.02.2015 FOR FINANCIAL YEAR 2007-08 (A.Y. 2008-09). THE PRESENT APPEALS BEFORE US ARE AGAINST THE AFORESAID TWO ORDERS DATED 16.02.2015 AND 17.02.2015 OF THE LD. C IT(A). 4. WE HAVE HEARD BOTH SIDES AND CAREFULLY PERUSED T HE MATERIALS ON RECORD. THE LD. COUNSEL FOR ASSESSEE RELIED ON AFORESAID ORDER DATE D 03.08.2016 OF ITAT AND ON OM PRAKASH AGGARWAL VS. ITO 66 ITR 175 (ALL.) . HE ALSO REFERRED TO SECTION 221(2) OF I.T. ACT. THE LD. DEPARTMENTAL REPRESENTATIVE R ELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5. IT IS NOTICED THAT THE PENALTY U/S 221(1) OF IT ACT FOR THE AFORESAID TWO ASSESSMENT YEARS HAS BEEN LEVIED IN RESPECT OF TAX LIABILITIES DETERMINED IN ORDERS U/S 201(1A) OF IT ACT FOR THE AFORESAID YEAR. AS THE A FORESAID ORDERS U/S 201 R.W.S. 201(1A) OF IT ACT FOR FINANCIAL YEAR 2007-08 (ASSESSMENT YE AR 2008-09) AND FINANCIAL YEAR 2008-09 (ASSESSMENT YEAR 2009-10) HAVE BEEN SET ASI DE BY DELHI BENCH OF ITAT AND RESTORED TO THE FILE OF THE ASSESSING OFFICER, THE PENALTY LEVIED U/S 221(1) OF I.T. ACT 4 ITA NOS. -2659 & 2660/DEL/2015. EMPLOYEES PROVIDENT FUND ORGANIZATION REGIONAL OFFI CE DELHI. HAVE NO LEGS TO STAND AT PRESENT. WE SET ASIDE THE AFORESAID ORDERS DATED 17.02.2015 AND 16.02.2015 RESPECTIVELY, OF THE LD. CIT(A) FOR A.Y. 2008-09 (F.Y. 2007-08) & A.Y. 2009-10 (F.Y. 2008-09); AND RESTORE THE CORRESPONDI NG MATTER REGARDING PENALTY U/S 221(1) OF THE IT ACT TO THE FILE OF THE ASSESSING O FFICER FOR FRESH ORDERS. THE ASSESSING OFFICER SHALL PASS FRESH ORDERS U/S 221(1) OF I.T. ACT AFTER THE CONSEQUENTIAL ORDERS U/S 201 R.W.S. 201(1A) OF I.T. ACT PURSUANT TO AFORESAI D ORDER DTD. 03.08.2016 OF ITAT ARE PASSED. THE ASSESSING OFFICER WILL GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING FRESH ORDERS U/S 221(1) OF IT ACT. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13/9/2018 SD/- SD/- (KULDIP SINGH) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13.09.2018 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NOS. -2659 & 2660/DEL/2015. EMPLOYEES PROVIDENT FUND ORGANIZATION REGIONAL OFFI CE DELHI. DATE OF DICTATION 12/9/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/9/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 13 /9/2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 /9/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 13 /9/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 13 /9/18 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