DCIT, New Delhi V. M/s. Ahmedabad Vadodara Expressway Co. Ltd, New Delhi

ITA 4381/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9697 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-01-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 16-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRATIMA KAUSHIK
• Keywords: Difference of opinion
• Section: 260A; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `A: NEW DELHI BEFORE SH G.E. VEERABHADRAPPA,VP & SH R.P.TOLANI ,JM I.T.A. NO.4381/DEL OF 2009 ASSESSMENT YEAR: 2003-04 DCIT, CIRCLE 1(1), AHMEDABAD VADODARA EXPRESSWAY 31, SOUTH PATEL NAGAR, VS PLOT NO. G-5 & 6 S ECTOR 10,DWARKA, NEW DELHI. APPELLANT RESPONDENT APPELLANT BY: MS PRATIMA KAUSHIK DEPARTMENT BY: NONE ORDER PER R.P. TOLANI, JM: THIS IS REVENUE APPEAL. SOLE GROUND RAISED IS AS U NDER: THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN DELETING PENALTY OF RS.25,00,000/- U/S 271(1)(C ) O F THE ACT BY FOLLOWING QUANTUM APPEAL ORDER NO.2110/DEL/07 DATED 31.8.2009 PASSED BY THE HONBLE ITAT WHEREBY RELIEF IS ALLOWED TO THE ASSESSEE. THE DECISION OF LD. CIT(A) IS NOT ACCEPTABLE IN VIEW OF THE FACT THAT DEPTT. INTENDS TO FILE FURTHER APPEAL U/S 260A ON THE QUANTUM ISSUE AGAINST THE DECISION OF HONBLE ITAT. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAV E HEARD THE LEARNED DR AND PASSED AN EX PARTE ORDER QUA THE ASSESSEE. 2 3. LEARNED DR CONCEDES THAT THE INCOME-TAX APPELLAT E TRIBUNAL DELETED THE QUANTUM ADDITIONS IN ITA NO.2110/07 VIDE ORDER DATED 31.8.2009, THEREFORE, THE PENALTY WAS NOT LEVIABLE, HOWEVER, T O KEEP THE REVENUES RIGHT ALIVE IN RESPECT OF DELETION OF PENALTY, THE APPEAL HAS BEEN FILED. 4. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MAT ERIAL ON RECORD. SINCE THE QUANTUM ADDITIONS QUA WHICH THE PENALTY U /S 271(1)(C ) WAS LEVIED HAS BEEN DELETED BY THE ITAT, PENALTY IMPOSED U/S 2 71(1)(C) DOES NOT SURVIVE. CIT(A) RIGHTLY DELETED THE PENALTY BY FOL LOWING OBSERVATIONS: FROM THE FACTS AVAILABLE IT IS CLEAR THAT THE ADDITIONS MADE BY THE AO ON THE BASIS OF WHICH THE PENALTY HAD BEEN IMPOSED WERE UPHELD BY THE CIT(A) BUT HAVE BEEN DELETED BY THE HONBLE ITAT IN ITA NO.2110/07 DATED 31.8.2009. KEEPING IN VIEW THAT THERE IS DIFFERENCE OF OPINION BETWEEN THE DIFFERENT REVENUE AUTHORITIES WITH REGARD TO THE QUANTUM ADDITIONS MADE, CIRCUMSTANCES DO NOT INDICATE THAT IT IS A CLEAR CA SE OF CONCEALMENT ON WHICH PENALTY U/S 271(1)( C) DESERVES TO BE IMPOSED. FURTHER, IT IS ALSO TRUE TH AT THE VERY BASIS ON WHICH THE PENALTY HAD BEEN IMPOSED HAS BEEN STRUCK DOWN BY THE ITAT. ACCORDINGLY THERE DOES NOT APPEAR TO BE ANY CASE FOR UPHOLDING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C). HOWEVER, THE AO SHALL BE AT LIBERTY TO CONSIDER SUCH PENALTY IN CASE ANY HIGHER COURT UPHOLDS THE QUANTUM ADDITION. AS A RESULT THE AO IS DIRECTED TO DELETE THE PENALTY AS IT HAS BECOME INFRUCTUOUS AND CANNOT BE SUSTAINED. ACCORDINGLY, THE APPELLANT SUCCEEDS IN HIS GROUND OF APPEAL. WE UPHOLD CIT(A)S ORDER AND APPEAL OF REVENUE IS D ISMISSED. 3 5. IN THE RESULT, REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2010. (G.E. VEERABHADRAPPA) (R.P. TOLANI) VICE PRESIDENT JUDICIAL MEMBER DATED: 14 TH JANUARY, 2010 VIJAY COPY TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A)-IV, NEW DELHI. 5. DR ASSISTANT REGISTRAR