DCIT, New Delhi V. M/s. Ravina & Associates P. Ltd., New Delhi

ITA 3666/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4817 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 10-07-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 19-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 143(3); 147

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SMT BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 3666/DEL/2014 (ASSESSMENT YEAR: 2003 - 04 ) DCIT, CIRCLE - 15(1), NEW DELHI VS. RAVINA & ASSOCIATES P LTD, 201, TOLSTOY HOUSE, TOLSTOY MARG, NEW DELHI PAN:AAACR4696N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ATIQ AHMED, SR. DR ASSESSEE BY: SH. SALIL AGGARWAL, ADV SHRI SHAILESH GUPTA, CA DATE OF HEARING 10/07 / 2017 DATE OF PRONOUNCEMENT 29 / 08 / 2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - XVIII, NEW DELHI DATED 11.04.2014 FOR THE ASSESSMENT YEAR 2003 - 04. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS. 2000662/ - IMPOSED BY AO U/S 271(1)(C) OF THE ACT IGNORING THE FACT THAT THE HONBLE ITAT HAS UPHELD THE ADDITIONS MADE BY TH E AO. 2. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS BY DELETING THE ABOVE PENALTY HOLDING THAT THE AO HAS NOT ABLE TO SPECIFY WHETHER THE PENALTY LEVIED IS FOR CONCEALMENT OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME NOT APPRECIATING THE FACT THAT THE ORDER OF THE AO CLEARLY SPECIFIES THAT THERE IS AN INCOME WHICH HAS EVADED TAX. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF TICKETING MAINLY OF AEROFLOT - A RUSSIAN AIRLINES. IT FILED ITS RETURN OF INCOME OF RS. 2145080/ - . THE ASSESSMENT WAS MADE U/S 143(3) OF THE INCOME TAX ACT, 1961 READ WITH SECTION 147 OF THE ACT ON 10.11.2006 ON RS. 7923299/ - . THE APPELLANT CONTESTED THE ADD ITION BEFORE THE FIRST APPELLATE AUTHORITY OF M/S. AEROFLOT RUSSIAN AIRLINE UNILATERALLY TRANSFERRED TO RESERVE AND S URPLUS ACCOUNT OF RS. 4194977/ - . HOWEVER, THE DECISION OF THE AO OF LIABILITY OF M/S. SORIN SEA FOOD PAGE 2 OF 3 UNILATERAL TRANSFER OF RESERVE AND SUR PLUS AMOUNTING TO RS. 12.49 LAKHS WAS NOT CONTESTED . DURING THE APPELLATE PROCEEDINGS EVEN THE ASSESSMENT OF JURISDICTION FOR REOPENING OF THE ASSESSMENT WAS ALSO FOUND TO BE TENABLE. THE ABOVE ORDER OF THE LD CIT(A) WAS AGITATED AND REVENUE PREFERRED APP EAL BEFORE THE COORDINATE BENCH WHEREIN THE ACTION U/S 147 OF THE ACT WAS UPHELD AND FURTHER ADDITION OF RS. 4194977/ - IS ALSO UPHELD. AGAINST THE ORDER OF THE COORDINATE BENCH THE ASSESSEE PREFERRED APPEAL BEFORE THE HON'BLE DELHI HIGH COURT WHO HAS ADMIT TED THE QUESTION OF LAW , WITH RESPECT TO THE ADDITION OF RS. 4194977/ - , SUCH ORDER IS PLACED IN PAPER BOOK AT PAGE 1 AND 2. SUBSEQUENTLY, TO THIS THE PENALTY U/S 271(1)(C) WAS LEVIED BY THE LD AO OF RS. 2000662/ - BY ORDER DATED 28.05.2009. THE PENALTY WAS WITH RESPECT TO THE ADDITION OF LIABILITY OF M/S. AEROFLOT AS WELL AS ON ACCOUNT OF SORIN SEA FOOD LTD. THE ASSESSEE CONTESTED BEFORE THE LD CIT(A) THE ABOVE PENALTY ORDER AND THE LD CIT(A) DELETED THE PENALTY. THE REVENUE IS NOW IN APPEAL BEFORE US. 4. WE H AVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS ON THE ISSUE OF BOTH THE PARTIES. THE LD AR SUBMITTED THAT WHEN THE QUESTION OF LAW IS ADMITTED BY THE HON'BLE DELHI HIGH COURT ON A CERTAIN POINT THEN THE ISSUE BECOMES DEBATABLE AND THEREFORE TO THAT EXTENT PENALTY CANNOT BE LEVIED. TO SUPPORT HIS CONTENTION HE RELIED UPON THE ORDER OF HON'BLE DELHI HIGH COURT IN ITA NO. 240/2009 DATED 05.10.2010 IN CASE OF LIQUID INVESTMENT LTD. HE FURTHER RELIED UPON THE ORDER OF HON'BLE DELHI HIGH COURT IN M/S. THOMSON PRE SS (INDIA) LTD. WHEREIN, SIMILAR ARGUMENTS WERE RAISED. 5. THE LD DR VEHEMENTLY CONTESTED THE ORDER OF THE LD CIT(A) TO SUBMIT THAT WHEN THE ISSUE IS MADE A CLAIM WHICH HAS BEEN UPHELD BY THE COORDINATE BENCH THE PENALTY SHOULD BE LEVIED. ADMITTEDLY ON THE ISSUE OF ADDITION OF RS. 4194977/ - THE APPEAL OF THE ASSESSEE HAS BEEN ADMITTED BY HON'BLE DELHI HIGH COURT AND RELEVANT ORDERS ARE PLACED IN THE PAPER BOOK WHEREIN VIDE ORDER DATED 07.07.2010, THE APPEAL OF THE ASSESSEE ON DISALLOWANCE OF RS. 4194977/ - IS ADMITTED. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE DELHI HIGH COURT IN CASE OF LIQUID INVESTMENT LTD. DATED 05.10.2010 WE CONFIRM THE FINDING OF THE LD CIT(A) IN DELETING THE PENALTY OF DISALLOWANCE OF RS. 4194977/ - . 6. WITH RESPECT TO ADDITION OF RS. 1249000/ - MADE BY THE LD AO WHICH WAS NOT CHALLENGED BY THE ASSESSEE BEFORE THE LD CIT(A) AND THEREFORE, THAT ADDITION WAS CONFIRMED AT THE ASSESSMENT SUCH ONLY. THIS FACT IS ALSO EVIDENT FROM THE ASSESSMENT ORDER PLACED AT PAGE 24 TO 32 OF THE PAPER BOOK AS WELL AS APPEAL FILED BEFORE THE LD CIT(A) AT PAGE 33 TO 40. THE LD CIT(A) IS ALSO NOT CONSIDERED ANY SPECIFIC ARGUMENT WITH RESPECT DELETION OF THE PENALTY ON ACCOUNT OF ADDITION OF RS. PAGE 3 OF 3 124 9000/ - THEREFORE, THE ISSUE WITH RESPECT TO PENALTY ON THE ADDITION OF RS. 12.49 LAKHS IS SET ASIDE TO THE FILED OF THE LD CIT(A) TO DECIDE AFRESH. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 9 / 08 / 2017 . - S D / - - S D / - ( BEENA A. PILLAI ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 9 / 08 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI