M/s. Emmsons International Ltd., Delhi V. ACIT, New Delhi

ITA 4335/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82018 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-10-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMIND KAUR
• Assessee Lawyers: NARENDER ARORA
• Keywords: Opportunity of being heard
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI H.S. SIDHU : JUDICIAL MEMBER ITA NO. 4335/DEL/2012 ASSTT. YR: 2004-05 M/S EMMSONS INTERNATIONAL LTD., VS. ACIT, CIRCLE-1 1(1), 2637, 1 ST FLOOR, NAYA BAZAR, NEW DELHI. DELHI-110006. PAN: AAACE 0442 K ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI NARENDER ARORA CA RESPONDENT BY : SMT. PARMIND KAUR SR. DR DATE OF HEARING : 09-10-2014 DATE OF ORDER : 21-11-2014. O R D E R PER S.V. MEHROTRA, A.M:- THIS APPEAL, PREFERRED BY THE ASSESSEE, IS DIRECTED AGAINST THE ORDER OF CIT(APPEALS)-XIII, NEW DELHI DATED 1-12-2011 IN APP EAL NO. 229/09-10, FOR A.Y. 2004-05, CONFIRMING THE PENALTY LEVIED U/S 271(1)(C ) OF THE ACT. FOLLOWING GROUNDS ARE RAISED: 1. THE ORDER UNDER APPEAL IS BAD IN LAW AS THE SAM E HAS BEEN PASSED WITHOUT PROVIDING SUFFICIENT OPPORTUNIT Y TO THE APPELLANT COMPANY TO PUT FORTH ITS SUBMISSION ON TH E ISSUES RAISED IN THE APPEAL. 2 ITA 4335/DEL/2012 EMMSONS INTERNATIONAL LTD. 2. THE LD. CIT(A) ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE HAS CLEARLY ERRED IN LEVY OF PENALTY OF RS . 1,67,587/- U/S 271(1)(C) F THE IT ACT IGNORING THE FACT THAT MERE ADDITION BY WAY OF DISALLOWANCE OF EXPENDITURE DOES NOT LEAD TO AN INFERENCE THAT THERE IS CONCEALMENT OF INCOME BY THE APPELLANT MAK ING IT LIABLE FOR LEVY OF PENALTY UNDER ABOVE PENAL PROVISIONS. 3. THE LD. CIT(A)HAS ERRED IN CONFIRMING THE LEVY O F PENALTY U/S 271(1)(C) OF THE IT ACT IGNORING THE FA CT THAT THE TAX HAS BEEN PAID AS PER THE RETURN OF INCOME ON THE BO OK PROFIT COMPUTED U/S 115JB OF THE ACT AND ALSO THE FACT THA T AS PER THE ORDER OF ASSESSMENT PASSED THE BOOK PROFIT REMAINED UNCHANGED AND IN VIEW OF THE DECISION OF HONBLE DE LHI HIGH COURT IN THE CASE OF CIT V. NAWAL INVESTMENTS LTD. (2010) 322 ITR 233 (DEL). WHEREIN IT WAS HELD THAT WHERE TH4ER E IS NO CHANGE IN THE BOOK PROFITS SUBJECTED TO TAX, NO PEN ALTY U/S 271(1) (C) IS LEVIABLE. 2. IN THIS CASE THE CIT(A), CONFIRMED THE PENALTY L EVIED U/S 271(1)(C) OF THE ACT BY DISMISSING THE ASSESSEES APPEAL, EX PARTE, IN LIMINE, INTER ALIA, OBSERVING AS UNDER: BE AS IT MAY, AS THE APPELLANT HAS CHOSEN NOT T O APPEAR DURING THE PRESENT APPELLATE PROCEEDINGS OR FILE ORAL/ WRITTEN SUBMISSIONS IN SUPPORT OF THE GROUNDS OF APPEAL, DESPITE BEING GIV EN SEVERAL OPPORTUNITIES AND WHEN NONE OF THE NOTICES WENT UNS ERVED, THE APPEAL IS DISMISSED INLIMINE. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN QUANTUM APPEAL, FOR THE ASSESSMENT YEAR IN QUESTION, VIDE OUR ORDER DATED 31-10-2014 IN ITA NO. 4336/DEL/2012, WE HAVE RESTORED THE MATTER TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION, ON MERITS. FURTHE R, WE FIND THAT IN THE PRESENT 3 ITA 4335/DEL/2012 EMMSONS INTERNATIONAL LTD. APPEAL, THE LEARNED CIT(A) HAS DISPOSED OF THE APP EAL EX PARTE, BY DISMISSING THE SAME IN LIMINE, WITHOUT DISCUSSING THE ISSUE RAISED BEFORE HIM. THUS, WE ARE CONSTRAINED TO SET ASIDE THE ORDER OF LEARNED CIT( A) AND RESTORE THE MATTER BACK TO HIS FILE WITH THE DIRECTION TO PASS A REASONED ORDE R, AFTER DECIDING THE QUANTUM APPEAL, IN ACCORDANCE WITH LAW, AFTER AFFORDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 4. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 21-11-2014. SD/- SD/- (H.S. SIDHU ) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21-11-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR