DCIT, New Delhi V. M/s. Khurmi Associates Pvt. Ltd., New Delhi

ITA 2803/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4694 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.2803/DEL/2015 ( ASSESSMENT YEAR: 2009-10) DCIT, CIRCLE 14 (2), NEW DELHI. VS. M/S. KHURMI ASSOCIATES PVT. LTD., 16, JANGPURA EXTN. MARKET, NEW DELHI 110 014. ASSESSEE BY MS. ANANYA KAPOOR, ADVOCATE SHRI KISLAYA PRASHAR, ADVOCATE SHRI SHIVANSH PANDYA, ADVOCATE REVENUE BY SHRI AMIT JAIN, SENIOR DR ORDER PER DIVA SINGH, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AS SAILING THE CORRECTNESS OF THE ORDER DATED 23.02.2015 OF CIT (A)-V, NEW DELHI PERT AINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE PENALTY IMPOSED ON U/S 271(1) (C), AS THE ASSESSEE HAS FAILED TO PROVIDE A VALID EXPLANATION OR REASON FOR NOT DISCLOSING TRUE/COMPLETE RECEIPTS AS INCOME DURING THE YEAR, THROUGH, THE RE FUND ON TDS WAS FULLY CLAIMED FOR WHOLE AMOUNT. 2. THAT THE ORDER OF THE LD. CIT (A) IS ERRONEOUS A ND IS NOT TENABLE ON FACTS AND IN LAW. 3. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 2. AT THE TIME OF HEARING, THE LD. AR, MS. ANANYA K APOOR APPEARING FOR THE ASSESSEE, INVITING OUR ATTENTION TO THE ORDER IN ITA NO.6221/ DEL/2013 DATED 11.08.2016 PASSED BY THE COORDINATE BENCH IN THE QUANTUM PROCEEDINGS, SU BMITTED THAT THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE AO WITH A DIRECTION TO MAKE A PROPER EXAMINATION. IT WAS THE SUBMISSION OF THE LD. AR THAT PURSUANT TO THE SAID ORDER, THE AO PASSED AN ORDER U/S 143(3)/254 DATED 26.12.2017 WHEREIN THE ADDITION H AS BEEN LARGELY SUSTAINED AND AS A DATE OF HEARING 3 1 .07 .2018 DATE OF PRONOUNCEMENT 02.08.2018 ITA NO.2803/DEL/2015 2 RESULT OF THAT THE AO HAS ALSO PASSED A PENALTY ORD ER DATED 20.06.2018. IN THESE CIRCUMSTANCES, IT WAS HER PRAYER THAT THE DEPARTMEN TAL APPEAL IS NOT MAINTAINABLE IN THE VERY SAME ASSESSMENT YEAR AS TWO PENALTY ORDERS CAN NOT BE SAID TO SURVIVE QUA THE SAME ADDITION. 3. LD. SENIOR DR, CONSIDERING THE RECORD, POSED NO OBJECTION. 4. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. WE FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRES ENT CASE, THOUGH THE CIT (A) HAS QUASHED THE PENALTY ORDER IN THE PRESENT PROCEEDING S, HOWEVER, EVEN OTHERWISE WE FIND THAT ONCE THE ISSUE IN THE QUANTUM APPEAL HAS BEEN SET ASIDE, THE PENALTY ORDER PASSED BY THE AO AS A RESULT OF THE ASSESSMENT ORDER WHICH STOOD SET ASIDE CANNOT SURVIVE. NOTING THE FACT THAT EVEN THOUGH IT HAS BEEN QUASHE D IN THE PRESENT PROCEEDINGS BY THE CIT (A), THE APPEAL OF THE REVENUE ON THE THRESHOLD ITSELF IN VIEW OF THESE FACTS CANNOT SURVIVE. ACCORDINGLY, THE APPEAL OF THE REVENUE I S DISMISSED. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 2 ND DAY OF AUGUST, 2018 TS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS)-V, NEW DELHI 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI