M/s. Vasundra Marbels, Ghaziabad V. ITO, Ghaziabad

ITA 275/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7089 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 29-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 15-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDRA DUBEY SENIOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH D DD D: NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 275/DEL/2013 275/DEL/2013 275/DEL/2013 275/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2005 2005 2005 2005 - -- - 06 0606 06 M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, C CC C- -- -52, SECTOR 52, SECTOR 52, SECTOR 52, SECTOR- -- -9, 9,9, 9, VIJAY NAGAR, VIJAY NAGAR, VIJAY NAGAR, VIJAY NAGAR, G GG GHAZIABAD. HAZIABAD. HAZIABAD. HAZIABAD. PAN : AAEFV4208K. PAN : AAEFV4208K. PAN : AAEFV4208K. PAN : AAEFV4208K. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(1), 2(1), 2(1), 2(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANAT KAPOOR, ADVOCATE. RESPONDENT BY : SHRI UMESH CHANDRA DUBEY, SENIOR DR. DATE OF HEARING : 2 22 29.08.2016 9.08.2016 9.08.2016 9.08.2016 DATE OF PRONOUNCEMENT : 05.09.2016 05.09.2016 05.09.2016 05.09.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2005-06 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), GHAZI ABAD DATED 3 RD MARCH, 2011. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AGAINS T THE LEVY OF PENALTY OF `7,38,940/-. 3. WE FIND THAT THERE IS A DELAY OF 624 DAYS IN FIL ING OF THE APPEAL. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTED B Y THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE WAS UNDER THE BO NA FIDE IMPRESSION THAT IT HAS ALREADY FILED THE APPEAL AGAINST THE AD DITION MADE BY THE ASSESSING OFFICER AND ONCE THE ADDITION WOULD BE DE LETED, THE PENALTY WOULD AUTOMATICALLY BE CANCELLED. UNDER THIS BONA FIDE BELIEF, THE ASSESSEE DID NOT FILE THE APPEAL AGAINST THE LEVY O F PENALTY. HOWEVER, ITA-275/DEL/2013 2 SUBSEQUENTLY, ASSESSEE WAS ADVISED TO FILE SEPARATE APPEAL AGAINST THE LEVY OF PENALTY. THEREFORE, THE ASSESSEE FILED THE APPEAL. THAT THIS BONA FIDE IMPRESSION WAS THE REASON FOR DELAY IN FI LING OF THE APPEAL AGAINST THE LEVY OF PENALTY. HE FURTHER STATED THA T IN THE QUANTUM APPEAL, IN FACT, ALL THE ADDITIONS HAVE BEEN DELETE D EXCEPT THE SMALL ADDITION OF `70,000/-. 4. LEARNED DR STATED THAT IN VIEW OF THE ABOVE SUBM ISSION OF THE LEARNED COUNSEL, THE PENALTY SHOULD BE SUSTAINED TO THE EXTENT OF ADDITION SUSTAINED. LEARNED COUNSEL FOR THE ASSESS EE HAS NO OBJECTION TO THE ABOVE SUBMISSION OF THE LEARNED DR. 5. AFTER CONSIDERING THE FACTS OF THE CASE AND SUBM ISSIONS OF BOTH THE PARTIES, WE DEEM IT PROPER TO CONDONE THE DELAY IN FILING OF THE APPEAL AND THE SAME IS ADMITTED. ADMITTEDLY, THE P ENALTY CANNOT BE SUSTAINED WHERE THE ADDITION ITSELF HAS BEEN DELETE D. THE LEARNED COUNSEL FOR THE ASSESSEE HAS POINTED OUT THAT AFTER THE APPEAL TO ITAT, THE ONLY ADDITION SUSTAINED IS `70,000/-. HE ALSO STATED THAT THERE IS NO CONCEALMENT OF INCOME WITH REGARD TO THE ADDITION S USTAINED FOR `70,000/-. HOWEVER, HE WOULD HAVE NO OBJECTION IF THE MINIMUM PENALTY IS SUSTAINED THEREON DUE TO SMALLNESS OF QU ANTUM OF PENALTY. IN VIEW OF THE ABOVE, WE DIRECT THE ASSESSING OFFIC ER TO LEVY THE MINIMUM PENALTY ON THE ADDITION OF `70,000/- SUSTAI NED BY THE ITAT. THE PENALTY ON THE REMAINING AMOUNT IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 05.09.2016 . SD/- SD/- (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-275/DEL/2013 3 COPY FORWARDED TO: - 1. APPELLANT : M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, M/S VASUNDHRA MARBLES, C CC C- -- -52 5252 52, SECTOR , SECTOR , SECTOR , SECTOR- -- -9, VIJAY NAGAR, GHAZIABAD. 9, VIJAY NAGAR, GHAZIABAD. 9, VIJAY NAGAR, GHAZIABAD. 9, VIJAY NAGAR, GHAZIABAD. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -2(1), NEW DELHI. 2(1), NEW DELHI. 2(1), NEW DELHI. 2(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR