ITO, Faridabad V. M/s. Chand (HUF), Jharsately

ITA 3948/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2230 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-12-2009
• Assessment Year: 1996-1997
• Appeal Filed On: 22-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Assessee Lawyers: VIRENDRA PAL SHARMA
• Keywords: Set aside
• Section: 271(1)(c); 45(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT & SHRI C.L. SETHI, JUDICIAL MEMBER ITA NOS. 3948 & 3949/DEL/2009 ASSESSMENT YEARS : 1996-97 & 1997-98 INCOME TAX OFFICER, WARD 1(5), FARIDABAD VS. SH. SHRI CHAND (HUF) THROUGH SH. SHRI CHAND (KARTA), S/O SHRI PYARE LAL, V & P.O. JHARSATELY. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH GUP TA, D.R. RESPONDENT BY : SHRI VIRENDRA PAL SHARMA, C.A. O R D E R PER: C.L. SETHI, J.M. THESE TWO APPEALS, FILED BY THE REVENUE, ARE DIRE CTED AGAINST THE COMMON ORDER DATED 05.08.2009 PASSED BY THE LD. CIT(A) IN THE MATTER OF AN PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 1996-97 AND 1997-98 RESPECTIVELY. 2. THE VARIOUS GROUNDS OF APPEAL RAISED BY THE REVE NUE ARE DIRECTED AGAINST THE LD. CIT(A)S ORDER IN DELETING THE PENALTY OF R S. 7,00,000/- AND RS. 5,00,000/- LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEARS 1996-97 AND 1997-98 RESPECTIVELY. 2 3. IN THE GROUNDS OF APPEAL, THE REVENUE HAS STATED THAT THE REVENUE HAS NOT ACCEPTED THE ORDER OF THE APPELLATE AUTHORITY IN DE LETING THE ADDITION OF QUANTUM, AND AN APPEAL HAS BEEN FILED BEFORE THE HONBLE HIG H COURT, WHICH IS STILL PENDING. THE DEPARTMENT, THEREFORE, HAS FILED THIS APPEAL AGAINST THE ORDER OF LD. CIT(A) IN DELETING THE PENALTY. 4. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GON E THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 5. IN THE COURSE OF HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ADDITION MADE BY THE A.O. IN THE QUANTUM ASSESSMENT HAS BEEN DELETED BY THE TRIBUNAL IN BOTH THE ASSESSMENT YEAR S AND, THEREFORE, THE ORDER OF PENALTY PASSED BY THE A.O. DOES NOT SURVIVE. HE FU RTHER SUBMITTED THAT EVEN OTHERWISE THE PENALTY U/S 271(1)(C) IS NOT LEVIABLE IN RESPECT OF THE LONG TERM CAPITAL GAIN ASSESSED BY THE A.O. ALONGWITH ACCRUED INTEREST RECEIVED ON COMPENSATION AMOUNT IN RESPECT OF THE ACQUISITION O F AGRICULTURAL LAND OF THE ASSESSEE, INASMUCH AS ALL THE PARTICULARS RELATING TO THE ISSUE IN HAND WERE DULY FURNISHED AND THE POINT OF DETERMINATION WAS PURELY BASED UPON THE INTERPRETATION ON THE PROVISIONS CONTAINED IN SECTION 45(5) OF THE ACT. IN THIS RESPECT, HE HAS PLACED HEAVY RELIANCE UPON THE ORDER OF THE LD. CIT (A). 6. IT IS NOT IN DISPUTE THAT THE ADDITION MADE BY T HE A.O. STANDS DELETED IN THE LIGHT OF THE TRIBUNAL DECISION AGAINST WHICH, IT IS STATED BY THE DEPARTMENT, THAT AN APPEAL HAS BEEN PREFERRED BEFORE THE HONBLE HIGH C OURT BUT, THE FACT REMAINS 3 THAT THE POSITION AS IT STANDS ON TODAY IS THAT, TH E ADDITION IN RESPECT OF WHICH THE PENALTY HAS BEEN LEVIED DOES NOT SURVIVE ANY MORE I NASMUCH AS SAME HAS BEEN DELETED BY THE TRIBUNAL. THEREFORE, THE PENALTY OR DER HAS LOST ITS LEGS TO STAND. IN THIS VIEW OF THE MATTER, THE ORDER OF THE LD. CIT(A ) IS UPHELD. HOWEVER, IN CASE THE ORDER OF THE TRIBUNAL IN THE QUANTUM APPEAL IS MODIFIED OR SET ASIDE OR ALTERED BY THE HIGHER APPELLATE AUTHORITY, THE DEPARTMENT S HALL BE AT LIBERTY TO MOVE AN APPLICATION TO CONSIDER THE MATTER AFRESH ON MERIT IN THE LIGHT OF THE FINAL OUTCOME OF THE QUANTUM MATTER. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THESE TWO APPEALS FILED BY THE RE VENUE ARE DISMISSED. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 15 TH DECEMBER, 2009. (G.E. VEERABHADRAPPA) ACCOUNTANT MEMBER (C.L. SETHI) JUDICIAL MEMBER DATED: 15 TH DECEMBER, 2009. MAMTA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR