THE ACIT, 4(1), Indore V. M/s. Phoenix Leisure & Life Style Pvt.Ltd., Indore

ITA 295/IND/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2207 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Section: 143(3)

Judgement Text

ACIT VS. M/S PHOENIX ITA NOS. 294 & 295/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ ITA. NOS. 294 & 295/IND/2017 / ASSESSMENT YEARS: 2008-09 & 2009-10 ASSTT.COMMR.OF INCOME TAX 4(1) INDORE :: / APPELLANT VS M/S PHOENIX LEISURE & LIFE STYLE PVT.LTD. INDORE PAN AAECP-9625K :: ! / RESPONDENT '# $ % & / REVENUE BY SHRI MOHD. JAVED '( $ % & / ASSESSEE BY NONE ) * $ (+ DATE OF HEARING 24.5.2017 ,-./ $ (+ DATE OF PRONOUNCEMENT 3 0 .5.2017 / O R D E R PER SHRI C.M. GARG, JM THESE APPEALS HAVE BEEN FILED BY THE REVENUE AGAINS T DIFFERENT ORDERS OF THE LEARNED CIT(A)-II, INDORE, BOTH DATED 31.1.2017 IN FIRST APPEAL NOS. IT-213/15-16/281 & I T-212/15- 16/279 THE ASSESSMENT YEARS 2008-09 AND 2009-10. ACIT VS. M/S PHOENIX ITA NOS. 294 & 295/IND/2017 2 2. NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY SP EED POST AT THE ADDRESS GIVEN IN FORM NO. 36 BUT THE SAME WAS RETUR NED BY THE POSTAL AUTHORITIES WITH THE REMARK ADDRESS MOVED/SHIFTED . WE, THEREFORE, HAVE NO OPTION BUT TO PROCEED TO DECIDE THE APPEAL EX- PARTE. ACCORDINGLY, THE LEARNED DR WAS HEARD. 3. IN BOTH THESE APPEALS, THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND OF APPEAL :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY U/ S 271(1)(C) OF RS.2,50,00,000/- (A.Y. 2008-09), RS.1,50,00,000/- B ASED ON DECISION OF ITAT IN QUANTUM APPEAL WHICH HAS NOT BE EN ACCEPTED BY THE REVENUE AND IS SUB JUDICE BEFORE HO N'BLE HIGH COURT. 3. BRIEFLY STATED, THE ASSESSMENTS WERE MADE BY THE ASSESSING OFFICER DETERMINING THE TOTAL INCOME OF THE ASSESSE E U/S 143(3) OF THE ACT. THE MATTER WENT UP TO THE TRIBUNAL WHEREIN THE TRIBUNAL GRANTED RELIEF IN QUANTUM PROCEEDINGS TO THE ASSESS EE BY DELETING THE ENTIRE ADDITION MADE IN THE ASSESSMENT ORDER. IN THESE CASES, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UN DER :- 2.1KEEPING IN MIND THAT THE HON'BLE ITAT BENCH OF INDORE HAS GIVEN RELIEF TO THE APPELLANT ON QUANTUM AND HAS DE LETED THE ACIT VS. M/S PHOENIX ITA NOS. 294 & 295/IND/2017 3 ENTIRE ADDITIONS SO MADE, THE ORDER IMPOSING PENALT Y IS NO LONGER TENABLE. THUS, KEEPING IN MIND THE ORDERS OF HON'BLE ITAT, THE ORDER IMPOSING PENALTY IS HEREBY CANCELLE D. THESE GROUNDS OF APPEAL ARE ALLOWED. 4. BEING AGGRIEVED WITH THE ABOVE ORDER OF THE COMM ISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFO RE THE TRIBUNAL. 5. THE LEARNED DR SUBMITTED THAT THE DEPARTMENT HAS FILED APPEAL AGAINST THE ORDER OF THE TRIBUNAL BEFORE THE HON'BLE HIGH COURT OF MADHYA PRADESH. THEREFORE, THE COMMISSIONE R OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DELETING THE PEN ALTY ONLY ON THE BASIS OF TRIBUNAL ORDER. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEAR NED DR IN THE WAKE OF THE FACTS AVAILABLE ON RECORD. WE MAY POINT OUT THAT THE LEARNED DR HAS NOT CONTROVERTED THIS FACT THAT IN T HE QUANTUM PROCEEDINGS ITAT, INDORE BENCH, HAS GIVEN RELIEF TO THE ASSESSEE AND THE ENTIRE ADDITIONS ON WHICH PENALTY HAS BEEN LEVIED U/S 271(1)(C) OF THE ACT HAS BEEN DELETED AND THUS WE H AVE NO HESITATION IN HOLDING THAT THE COMMISSIONER OF INCOME TAX (APP EALS) WAS RIGHT IN CANCELLING THE PENALTY AS WHEN THE ADDITIONS HAV E BEEN DELETED IN ACIT VS. M/S PHOENIX ITA NOS. 294 & 295/IND/2017 4 TOTO THEN THE ORDER OF IMPOSING PENALTY U/S 271(1)( C) OF THE ACT CANNOT BE HELD AS SUSTAINABLE MERELY BECAUSE THE RE VENUE HAS FILED APPEAL AGAINST THE ORDER OF THE TRIBUNAL BEFORE THE HON'BLE HIGH COURT. 7. IN THE RESULT, WE HOLD THAT THE PENALTY LEVIED B Y THE ASSESSING OFFICER WAS NOT SUSTAINABLE IN BOTH THESE CASES IN VIEW OF THE ORDER OF THE TRIBUNAL IN QUANTUM APPEAL AND, THEREFORE, T HE COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IN D ELETING THE SAME. ACCORDINGLY, THE SOLE GROUND OF THE REVENUE I N BOTH THE APPEALS, BEING DE VOID OF MERIT, IS DISMISSED. 8. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE S TAND DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 30 TH MAY, 2017. SD/- SD/- &+ # # (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER MAY 30, 2017. DN/