DCIT, Central Circle- 19 , New Delhi V. Yogesh Trading Company, New Delhi

ITA 3744/DEL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1656 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: VED JAIN SH ASHISH CHADHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE S H. R.K. PAND , ACCOUNTANT MEMBER AND SH. SUDHANSHU SRIVASTAVA, JUDICI A L MEMBER ITA NO. 3744 /DEL/201 7 ASSESSMENT YEAR: 20 08 - 09 DCIT CENTRAL CIRCLE 19 NEW DELHI VS YOGESH TRADING COMPANY, 9/9, MAIN ROAD KAILASH NAGAR, GANDHI NAGAR, DELHI PAN AAAFY0201F (APPELLANT) (RESPONDENT) APPELLANT BY S H . SURENDER PAL, SR. DR RESPONDENT BY SH. VED JAIN , ADVOCATE SH. ASHISH CHADHA, CA DATE OF HEARING: 20 / 11 /2018 DATE OF PRONOUNCEMENT: 20 /11/2018 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 2 7 . 0 3 .201 7 P A SSED BY THE CIT (A) - 27, NEW DELHI RELATING TO A. Y. 2008 - 09. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UN DER : - 2 1 . THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY IMPOSED OF RS.47,83,144/ - UNDER SECTION 271 (1) (C) OF THE ACT, WITHOUT PROPERTY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 . (A) THE ORDER OF THE CIT (APPEALS) IS ERR ONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ ALL OF THE GROUND OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THA T PENALTY U/S 271 (1) (C ) OF THE I. T. ACT WAS LEVIED ON ADDITION OF RS. 1,44,94,375/ - ON ACCOUNT OF SHORT FALL IN SURRENDER OF INCOME . HE SUBMITTED THAT THE ADDITION SO MADE BY THE ASSESSING OFFICER WHICH W AS CONFIRMED BY THE CIT(A) HAS BEEN DELETED BY T HE TRIBUNAL VIDE ITA NO. 1193/DEL/2012 ORDER DATED 08.02.2017. SINCE THE VERY BASIS ON WHICH PENALTY WAS LEVIED DOES NOT SURVIVE, THEREFORE, THE ORDER OF THE CIT(A) DELETING THE PENALTY IS JUSTIFIED AND THE APPEAL FILED BY THE REVENUE HAS TO BE DISMISSED. 4. THE LD. DR FAIRLY CON CEDED THAT THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER WHICH WAS SUSTAINED BY THE CIT(A). THEREFORE, THE PENALTY DOES NOT SURVIVE. 5. AFTER CONSIDERING THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PER USAL OF THE ORDERS OF THE AUTHORITY BELOW , W E FIND THE ASSESSING OFFICER HAD MADE ADDITION OF RS.1,44,94,375/ - ON ACCOUNT OF SHORT FALL IN SURRENDER OF INCOME. THE ADDITION SO MADE BY THE ASSESSING OFFICER WAS CONFIRMED BY THE CIT (A). THE ASSESSING OFFIC ER THEREAFTER INITIATED THE PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE I. T. ACT 1961 AND LEVIED PENALTY OF RS.44,83,144/ - . THE CIT(A) DELETED THE PENALTY SO LEVIED BY THE ASSESSING OFFICER ON THE GROUND THAT THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A). SINCE THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A), THEREFORE, THE VERY BASIS O N WHICH 3 PENALTY WAS LEVIED DOES NOT SURVIVE. THEREFORE, THE ORDER OF THE CIT(A) CANCELLING THE PENALTY IS FULLY JUSTIF IED . THE SAME IS ACCORDINGLY UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 .1 1 .2018 . SD/ - SD/ - ( SUDHANSHU SRIVASTAVA ) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE: - 20 . 1 1 .2018 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 DATE OF DICTATION 20.11.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 20.1 1.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER