Committed Trading Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 367/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5769 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: ROHIT JAIN
• Keywords: Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 367/DEL/2016 A.Y. : 2008-09 COMMITTED TRADING PVT. LIMITED, VS. ITO, WARD 3(3 ) SHOP NO. 319, 3 RD FLOOR, NEW DELHI VARDHMAN FORTUNE MALL, G.T. KARNAL ROAD, DELHI 110 033 (PAN: AACCC4073A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ROHIT JAIN, ADV. & MS. SHAILY GUPTA, CA DEPARTMENT BY : SMT. NAINA SOIN KAPIL, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 21.10.2015 OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS)-2, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS OF APPEAL RAISED IN THE ASSESSEES APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE ID. CIT ( A) ERRED IN UPHOLDING THE LEVY O F PENALTY OF 47,43,320/- U/S 271(L)(C) OF THE INCOME TAX ACT,19 61 MERELY ON THE BASIS OF PRESUMPTIONS AND SUSPICIONS, 2 IGNORING THE VARIOUS JUDICIAL PRONOUNCEMENTS AND MATER IAL ON RECORD. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE ID. CIT ( A) ERRED IN UPHOLDING THE LEVY O F PENALTY OF 47,43,320/- U/S 271(L)(C) OF THE INCOME TAX ACT,1 961ON THE GROUND THAT NO CONVINCING/SATISFACTORY EXPLANATION HAS BEEN FILED BY THE ASSESSEE AND THAT THE ASSESSEE HAS FAILED TO PROVE THAT THERE WAS NO FRAUD OR NEGLECT IN FILING THE RETURN. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO EACH OTHER. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY GROUND OF APPEAL EITHER BEFORE OR AT T HE TIME OF HEARING OF THIS APPEAL. 3. ASSESSEE HAS ALSO FILED SEPARATE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS IN APPEAL IN WHICH THE ASSESSEE HAS STATED THAT IN VIEW OF THE SETTLED DECISION IN THE CASE OF NTPC 229 ITR 383 (SC), (LEGAL GROUND CAN BE RAISED FOR FIRST TIME IN COLLATERAL AND SECOND ROUND ALSO ). HE FURTHER STATED THAT SINCE THE ISSUE IS PURELY LEGAL BASED ON FACTS ALRE ADY ON RECORD, THE ASSESSEE MAY BE ALLOWED TO RAISE THE FOLLOWING ADDITION AL GROUND IN THE INTEREST OF NATURAL JUSTICE:- 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED PENALTY OF RS. 47,43,320/- LEVIED UNDER SECTION 271(1) OF THE ACT IS WITHOUT JURISDICTION, ILLEG AL AND BAD IN LAW. 3 3.1 THAT THE AO ERRED ON FACTS AND IN LAW IN NOT SPECIFYING WHETHER THE PENALTY IS LEVIED FOR CONCEALME NT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS O F INCOME, AND INTERCHANGEABLY APPLYING THE TWO CONCEPTS WHILE IMPOSING PENALTY UNDER SECTION 271(1) OF THE ACT . 3.1 LD. COUNSEL OF THE ASSESSEE REQUESTED THAT KEEPING IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NTPC 229 ITR 383 (SC) (SUPRA), THE ADDITIONAL GROUNDS RAISED BY T HE ASSESSEE IN ALL THE THREE APPEALS MAY BE ADMITTED AND DECIDED FIRST. 4. ON THE CONTRARY, LD. DR STRONGLY OPPOSED THE ADMISSI ON OF ADDITIONAL GROUNDS (LEGAL) RAISED BY THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES AS WELL AS PERUSING T HE ADDITIONAL GROUNDS ALONGWITH THE ORDERS PASSED BY THE REVENUE AUT HORITIES, WE ARE OF THE CONSIDERED VIEW THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NTPC LIMITED 229 ITR 38 3 (SUPRA), THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE PURELY LEG AL GROUND AND DID NOT REQUIRE FRESH FACTS WHICH IS TO BE INVESTIGATED AN D GOES TO THE ROOT OF THE MATTER. IN THE INTEREST OF JUSTICE, WE ADMIT TH E AFORESAID ADDITIONAL GROUNDS. WE FIND THAT SINCE THESE ADDITIONAL GROUND WER E NOT RAISED BEFORE THE LD. CIT(A), HENCE, THE SAME REQUIRES ADJUDICATION B Y THE LD. CIT(A), THEREFORE, IN THE INTEREST OF JUSTICE, WE REMIT BACK TH E AFORESAID ADDITIONAL GROUNDS TO THE FILE OF THE LD. CIT(A) WITH THE DIRE CTIONS TO DECIDE THE SAME 4 AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 10/05/2019. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10/05/2019 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