ITO, New Delhi V. M/s Triveni Media Ltd., Noida

ITA 3556/DEL/2013

• Counselvise Citation: 355620114 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 25-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Keywords: Initiation of penalty proceedings
• Section: 201(1)

Judgement Text

ITA NO. 3556/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. N O. 3556/DEL/2013 F .Y. : 2008 - 09 ITO, WARD 51(5), ROOM NO. 506, AAYAKAR BHAVAN, LAKSHMI NAGAR, DISTRICT CENTRE, NEW DELHI VS. M/S TRIVENI MEDIA LTD., A - 37, SECTOR - 60, NOIDA, UP (PAN: AACCT6185G) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. SAMEER SHARMA, SR. DR ASSESSEE BY : NONE A S DATE OF HEARING : 25 - 9 - 2014 DATE OF ORDER : 29 - 9 - 2014 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - XXX, NEW DELHI DATED 14 . 4 .201 3 P ERTAINING TO FINANCIAL YEAR 2008 - 09 . 2. THE GROUNDS RAISED READ AS UNDER: - 1. THE ORDER OF THE LD. CIT(A) IS PERVERSE AND ERRONEOUS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. AS PER SUB - SECTION ( 1 ) OF SECTION 246(A) OF THE I.T. ACT, AN ASSESSEE OR ANY DEDUCTOR ITA NO. 3556/ DEL/ 2013 2 AGGRIEVED BY ANY OF THE ORDERS MENTIONED IN THE IMPUGNED SECTION CAN FILE AN APPEAL BEFORE CIT(A). 2. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT IN THE ORDER PASSED U/S. 201(1) / 201(1A) OF THE I.T. ACT THE AO HAS MERELY RE FER THE MATTER OF INITIATION OF PENALTY PROCEEDINGS U/S. 272A(2)K OF THE I.T. ACT FOR NOT FILING THE QUARTERLY RETURNS WITH IN DUE DATE TO JCIT, RANGE - 51, DELHI. THEREFORE, THE ASSESSEE SHOULD NOT HAVE BEEN AGGRIEVED BY SUCH REFERENCE OF THE PENALTY WHIC H IS PENDING FOR ADJUDICATION BEFORE JCIT, RANGE - 51, DELHI. 3. THE LD. CIT(A) HAS ERRED IN DECIDING THE ISSUE OF PENALTY TO BE LEVIED 272A(2)(K) OF THE I.T. ACT WHICH WAS NOT THE SUBJECT MATTER OF ORDER PASSED U/S. 201(1)/201(A) OF THE I.T. ACT AGAINST WH ICH APPEAL HAS BEEN FILED BY THE ASSESSEE. 4. THE LD. CIT(A) HAS FURTHER ERRED IN DECIDING THE APPEAL U/S. 250 OF THE I.T. ACT WHICH WAS NOT AT ALL ADMISSIBLE AS PER PROVISIONS OF SECTION 246A OF THE I.T. ACT. THEREFORE, THE ORDER OF THE LD. CIT(A) MAY KINDLY BE SET ASIDE. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 3. THE FACTS OF THE CASE ARE NOT IN DISPUTE BY BOTH THE PARTIES, THEREFORE, NEED NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. ITA NO. 3556/ DEL/ 2013 3 4. ASSESSING OFFICER VIDE HIS ORDER DATED 25.3.2009 PASSED UNDER SECTION 201(1)/201(1A) OF THE I.T. ACT, 1961 HAS COMPUTED THE TOTAL TAX LIAB I LITY PAYABLE OF THE COMPANY OF RS. 1,91,41,614/ - AS UNDER: - S.NO. AMOUNT OF TDS DEDUCTED BUT NOT DEPOSITED AS PER TRIAL BALANCE FILED W.E.F. 1.4.2008 TO 31.12.2008 INTEREST U/S. 201(1A), UPTO THE DATE OF SURVEY (AS PER SURVEY REPORT) INTEREST U/S. 201(1A) W.E.F. NOVEMBER, 2008 TO 24.3.2009 TOTAL LIABILITY PAYABLE. 1. RS. 1,71,95,823 RS. 10,86,000 RS. 8,59,791 RS. 1,91,41,614 AO FURTHER INITIATE THE PENALTY PROCEEDINGS U/S. 272A(2)(K) OF THE I.T. ACT FOR NOT FILING THE QUARTERLY RETURNS IN DUE TIME WAS BEING REFERRED TO THE JCIT, R - 51, NEW DELHI. 5. AGAINST THE AFORESAID ORDER DATED 25.3.2009 PAS S ED BY THE AO U/S. 201(1)/201(1A) OF THE I.T. ACT, 1961 , ASSESSEE APPEALED BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 14.3.2013 HAS ALLOWED THE APPEAL OF THE ASSESSEE. 6 . AGGRIEVED BY THE LD. FIRST APPELLATE AUTHORITY AFORESAID ORDER DATED 14 . 3.2013 , REVENUE PREFERRED AN APPEAL BEFORE US. 7 . DURING THE HEARING LD. DR REL I ED UPON THE ORDER OF THE ASSESSING OFFICER AND REITERATED THE CONTENTION RAISED IN THE GROUNDS OF APPEAL FILED BY THE DEPARTMENT. 8 . NONE APPEARED ON BEHALF OF THE ASSESSEE. ITA NO. 3556/ DEL/ 2013 4 9 . UPON HEARING THE LD. DR AND PERUSING THE RECORDS, WE ARE OF THE OPINION THAT THE APPEAL CAN BE DECIDED EXPARTE QUA ASSESSEE. WE FIND THAT LD. CIT(A) WITH REGARD TO ISSUE CREDIT TO THE TAXES OF RS. 36,70,255/ - AND INTEREST CALCUATIONS HAS OPINED AS UNDER: - PAID CHALLANS ARE VERIFIED AND CRDIT OF TAXES PAID TO BE ALLOWED. 9. 1 WE ALSO FIND THAT WITH REGARD TO ISSUE TDS PAYABLE HAS OPINED THAT THE CHALLANS OF THE TAXES PAID OF THE FINAL CORRECTED DEMAND HAS BEEN VERIFIED AND RECOVERED / DEPOSITED AMOUNT TO BE DULY CREDI TED IN THE RESPECTIVE SECTIONS AS PER THE DETAIL. NO DEMAND OUSTANDING. THEREFORE, LD. CIT(A) DIRECTED THE AO TO RECALCUALUTE THE INTEREST LIABLITY AND GIVE THE CREDIT OF THE TAXES PAID. 9. 2 WE ALSO FIND THAT WITH REGARD TO PENALTY INTIATION U/S. 272A( 2)(K) OF THE I.T. ACT, 1961, LD. CIT(A) FOUND ASSESSEE S CONTENTION CORRECT IN RESPECT OF DEMAND RASIED BY THE AO, IT WAS PARTLY PAID BEFORE THE PASSING OF THE ORDER DATED 25.3.2009 BY THE AO AND BALACNE DEMAND HAS BEEN PAID ON OR BEFORE 31 ST MARCH, 2010 W HICH HAS BEEN VERIFIED DURING COURSE OF HEARINGS. THERE IS NO DEMAND OUTSTANDING. THE PENALTY PROCEEDINGS INITIATED U/S. 272(2)(K) IN THE ORDER U/S 201(1)/(1A) ARE ACCORDINGLY DROPPED. 9. 3 WE FIND THAT ACTION OF INITIATION OF PENALTY U/S. 272(2)(K) B Y THE ASSESSING OFFICER IS TOO PREMATURE AND NOT SUSTAINABLE IN THE EYES OF LAW. ITA NO. 3556/ DEL/ 2013 5 10. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. CIT(A). 11. IN TH E RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 29/ 9 /20 1 4 . SD/ - SD/ - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 29 / 9 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES