ACIT, Bhubaneswar V. M/s Hindustan Constructions, Bhubaneswar

ITA 30/CTK/2012

• Counselvise Citation: 3022114 RSA 2012
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 1998-1999
• Appeal Filed On: 06-01-2012
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHYCIT
• Assessee Lawyers: P
• Keywords: Tax effect

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO S . 30 AND 31/CTK/2012 (ASSESSMENT YEARS1998 - 99 AND 1999 - 2000) ASST.COMMISSIONER OF INCOME - TAX , CIRCLE 2(1), BHUBANESWAR. VER SUS M/S.HINDUSTAN CONSTRUCTIONS, PLOT NO.N - 1/93, NAYAPALLY, BHUBANESWAR PAN: AAAFH 7952 C (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SMT. PARAMITA TRIPATHY,CIT - DR FOR THE RESPONDENT SHRI P.S.PANDA/K.AGARWAL, ARS DATE OF HEARING : 14.0 3.2012 DATE OF PRONOUNCEMENT : 02.04.2012 ORDER SHRI K.S.S.PRASAD RAO, JM : THESE TWO APPEALS BY THE ASSESSEE ARE AGAINST ORDERS OF THE COMMISSIONER OF INCOME - TAX (APPEALS) BOTH OF EVEN DATED THE 3 RD OCTOBER, 2011 CANCELLING THE PENALTY OF 3,93,118 AND 7,00,286 LEVIED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEARS 1998 - 99 AND 1999 - 2000. 2. THE UNDISPUTED FACTS ARE THAT THE QUANTUM ADDITIONS MADE BY THE ASSESSING OFFICER IN BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION, ON THE BASIS OF WHICH HE IMPOSED THE PENALTY U/S.271(1)(C) OF THE I.T.ACT,1961, HAVE BEEN DELETED BY THE ITAT,CUTTACK BENCH VIDE ORDER DT.15.11.2010 IN ITA NOS.223 AND 224/CTK/2007 . CONSIDERING THIS ASPECT OF THE CASE, THE LEARNED CIT(A) HA S DELETED THE PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION, IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS IN THE CASE OF K.C.BUILDERS V. ACIT [(2004) 265 ITR 562 (SC), CIT V. BENGAL JUTE MILLS CO. LTD [(19 88) 174 ITR 402 (CAL), CIT V. MADANLAL SOHANLAL [1989) 176 ITR 189 (CAL), CIT V. BEDI & CO. (P) LTD., [(1990) 183 ITR 59 (KARN) AND ADDL.CIT V. BADRI PRASAD KASHI PRASAD [ ( 1 993) 200 ITR 206 (ALL), WHEREIN IT IS HELD THAT WHERE THE ADDITIONS MADE IN THE AS SESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED , ARE DELETED, ITA NOS.30 AND 31/CTK/2012 2 THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. 3. THE LEARNED CIT - DR CONTENDED THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN DELETING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE I.T.ACT, WHEN THE DELETION BY THE ITAT OF THE QUANTUM ADDITION WAS NOT BASED ON MERIT AND FURTHER APPEAL WAS NOT MADE BECAUSE OF THE TAX EFFECT. THE LEARNED AR OF THE ASSESSEE, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE LEARNED CIT(A). 4. HAVING HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE LAWS RELIED ON BY THE LEARNED CIT(A), WE FIND THAT THE UNDISPUTED FACTS ARE THAT THE ITAT,CUTTACK BENCH IN ITA NOS.223 AND 234/CTK/2007 HAS DELETED THE QUANTUM ADDITIONS. WHETHER THE DELETION OF THE QUANTUM ADDITION IS BASED ON MERITS OR NOT OR WHETH ER THE DEPARTMENT CAN FILE APPEAL AGAINST THE ITATS ORDER, AS NOW PLEADED BY THE LEARNED CIT - DR BEFORE US, ARE NOT THE DECISIVE FACTORS TO BE CONSIDERED TO DECIDE WHETHER CANCELLATION OF THE PENALTY U/S.271(1) IS JUSTIFIED OR NOT. THE QUESTION HERE TO BE DECIDED IS WHETHER THE LEARNED CIT(A) IS JUSTIFIED IN CANCELLING THE PENALTY LEVIED U/S.271(1)(C) BASED ON THE FACTS THAT THE ITAT HAS DELETED THE QUANTUM ADDITION. THE ADMITTED FACTS REMAIN THAT THE QUANTUM ADDITIONS , BASED ON WHICH THE PENALTY WAS IMPO SED, HAS BEEN DELETED BY THE ITAT AND THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT T HE PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT,1961 ON SUCH FACTS AND CIRCUMSTANCES OF THE CASE, CANNOT SURVIVE AND AS SUCH LIABLE TO BE CANCELLED IN VIEW OF THE VARIOUS J UDICIAL PRONOUNCEMENTS AS STATED SUPRA. IN VIEW OF THE ABOVE, WE UPHOLD THAT THE LEARNED CIT(A) IS JUSTIFIED IN CANCELLING THE IMPUGNED PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT FOR BOTH ITA NOS.30 AND 31/CTK/2012 3 THE AYS UNDER CONSIDERATION . WE UPHOLD THE SAME AND DISMISS THE APP EALS OF THE REVENUE FINDING THE SAME BEING DEVOID OF MERITS. 5. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED. SD/ - SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 02.04.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ASST.COMMISSIONER OF INCOME - TAX , CIRCLE 2(1), BHUBANESWAR. 2. THE RESPONDENT: M/S.HINDUSTAN CONSTRUCTIONS, PLOT NO.N - 1/93, NA YAPALLY, BHUBANESWAR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.