ITO, Ward, Parwanoo V. Blue Coast Infrastructure Development Ltd., Parwanoo

ITA 289/CHANDI/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5320 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C CHANDRAKANTA
• Assessee Lawyers: SUDHIR SEHGALADV
• Keywords: Capital asset; Set aside
• Section: 271(1)(c); 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' #$! %'$ , BEFORE: SHRI. N.K.SAINI, VP & SHRI MAHAVIR SINGH, V P ITA NO. 289/CHD/2020 ASSESSMENT YEAR : 2008-09 THE I.T.O., WARD-PARWANOO. BLUE COAST INFRASTRUCTURE DEVELOPMENT LTD., 7, SHOPPING COMPLEX, SECTOR-1, PARWANOO, DISTT.-SOLAN. PAN NO: AABCM 4010 E APPELLANT RESPONDENT ! REVENUE BY : SMT. C. CHANDRAKANTA, CIT-DR '# ! ASSESSEE BY : SHRI SUDHIR SEHGAL, ADV. $ % #& DATE OF HEARING : 17/05/2021 '()* #& DATE OF PRONOUNCEMENT : 17/05/2021 &'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 24/01/2020 OF LD. CIT(A), SHIMLA, H.P. FOLLOWING GROUNDS HAVE BEE N RAISED IN THIS APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS. 10,44, 93,793/- LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT BY HOLDING THAT SINCE THE QUANTUM ADDITION HAS BEEN DELETED BY THE HON'B LE ITAT, PENALTY LEVIED CANNOT BE SUSTAINED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS IGNORED THE FACTS OF THE CASE THAT SINCE TH E LAND IN QUESTION HAS BEEN TREATED AS A CAPITAL ASSET WITHIN TH E MEANING OF SECTION 2(14) OF THE ACT. PENALTY HAS BEEN LEV IED ON THE QUANTUM ADDITION MADE AS LONG TERM CAPITAL GAIN. 3. IT IS PRAYED THAT THE ORDER OF THE CIT(A) BE SET A SIDE AND THAT OF THE A.O. RESTORED. 2 ITA 289/CHD/2020 ITO VS BLUE COAST INFRASTRUCTURE DEVELOPMENT LTD. 4. THE APPELLANT CRAVES LEAVE TO ADD ANY OTHER GROUND OF APPEAL WHICH MAY ARISE AT THE TIME OF HEARING. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE AT THE VERY OUTSET HAS STATED THAT THE QUANTUM ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTY WAS LEVIED BY THE A.O. HAS BEEN DE LETED BY THE ITAT VIDE ORDER DATED 11/12/2019 PASSED IN ITA NO. 652/CHD/20 17 FOR THE A.Y. 2008-09, THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS, THE ACT). RELIANCE WAS PLACED ON THE JUDGMENT MENTIONED OF TH E HON'BLE SUPREME COURT IN THE CASE OF K.C. BUILDERS AND ANR. VS ACIT REPOR TED IN (2004) 265 ITR 562. 3. IN HER RIVAL SUBMISSIONS, THE LD. CIT-DR, ALTHOU GH SUPPORTED THE ORDER OF THE A.O. BUT COULD NOT CONTROVERT THE AFORESAID CONTEN TION OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE QUANTUM ADDITION ON THE BASIS ON WHICH, THE IMPUGNED PENALT Y WAS LEVIED BY THE A.O. HAS BEEN DELETED BY THE ITAT CHANDIGARH BENCH VIDE ORDER DATED 11/12/2019 PASSED IN ITA NO. 652/CHD/2017 FOR THE A.Y. 2008-09 , THEREFORE, THE ADDITION ON THE BASIS OF WHICH THE PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED BY THE A.O. IS NOT IN EXISTENCE, THEREFORE, PENALTY U/S 271(1)(C) OF THE ACT LEVIED BY THE A.O. WAS RIGHTLY DELETED BY THE LD. CIT(A). 5. ON A SIMILAR ISSUE, THE HON'BLE APEX COURT IN TH E CASE OF K.C. BUILDERS AND ANR. VS ACIT REPORTED IN (2004) 265 ITR 562 HELD AS UNDER: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER O N THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS N O BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENAL TY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 3 ITA 289/CHD/2020 ITO VS BLUE COAST INFRASTRUCTURE DEVELOPMENT LTD. 6. WE, THEREFORE, BY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THE AFORESAID REFERRED TO CASE, ARE OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE IMPUGNED PENALTY. WE DO NOT SEE ANY VAL ID GROUND TO INTERFERE WITH THE FINDINGS GIVEN BY THE LD. CIT(A) ON THIS ISSUE AND WE UPHOLD THE SAME. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 17/05/2021) SD/- SD/- #$! %'$ , .., (MAHAVIR SINGH) (N.K. SAINI) / VICE PRESIDENT / VICE PRESIDENT DATE: 17/05/2021 *RANJAN (+ #,-.-# COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ /# CIT 4. $ /#01 THE CIT(A) 5. -2#45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE