M/s. Athena Energy Venture Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 4438/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5861 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SURESAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.4438/DEL/2016 ASSESSMENT YEAR: 2008-09 ATHENA ENERGY VENTURE PVT. LTD.,SECOND FLOOR, VIJAYA BUILDING, 17, BARAKHAMBA ROAD, NEW DELHI PAN NO. AAGCA2179K VS. DCIT CIRCLE 2 (1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. SURESAN, CA RESPONDENT BY SH. S. L. ANURAGI, SR. DR DATE OF HEARING: 06/02/2020 DATE OF PRONOUNCEMENT: 17/02/2020 ORDER PER R.K PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 21.12.2015 OF THE CIT(A)-1, NEW DELHI R ELATING TO A.Y.2008-09. 2. THERE IS A DELAY OF 150 DAYS IN FILING OF THE AP PEAL BY THE ASSESSEE FOR WHICH THE ASSESSEE HAS FILED A CONDONA TION PETITION EXPLAINING THE REASON FOR SUCH DELAY. AFTER HEARING BOTH THE SIDES AND AFTER GOING THROUGH THE CONTENTS OF THE CONDONA TION PAGE | 2 APPLICATION, THE DELAY IN FILING OF THE APPEAL BY T HE ASSESSEE IS CONDONED AND THE APPEAL IS BEING ADMITTED FOR HEARI NG. 3. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THESE ALL RELATE TO THE EXPARTE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY OF RS.3,39,900/- LEVIED BY T HE AO U/S. 271 (1) (C) OF THE IT ACT. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE FILED ITS RETURN OF INCOME ON 30.11.2008 DECLARING NIL INCOME . THE AO COMPLETED THE ASSESSMENT U/S.143 (3) ON 16.11.2010 DETERMINING TOTAL LOSS AT RS.68,75,170/- WHEREIN APART FROM OTH ER ADDITIONS HE MADE ADDITION OF RS. 10 LACS BEING THE STAMP DUT Y PAID TO THE ROC FOR INCREASE IN AUTHORIZED CAPITAL SINCE ASSESS EE, IN THE COMPUTATION OF INCOME, HAD DISALLOWED SUO-MOTO OF RS.24,85,300/- AS AGAINST RS.34,85,300/-. WHILE DOI NG SO THE AO RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF BROOKE BOND INDIA LTD. VS. CIT 225 ITR 798. THE AO THEREAFTER INITIATED PENALTY PROCEEDINGS U/S. 271 (1) (C) OF T HE IT ACT, 1961 AND LEVIED PENALTY OF RS.3,39,900/- BEING 100% OF T AX SOUGHT TO BE EVADED. 5. SINCE NONE APPEARED BEFORE THE CIT(A) DESPITE NU MBER OF OPPORTUNITIES GRANTED, THE LD. CIT(A), IN THE EXPAR TE ORDER PASSED BY HIM, SUSTAINED THE PENALTY SO LEVIED BY THE AO. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I T IS AN ADMITTED FACT THAT DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE ASSESSEE PAGE | 3 DID NOT APPEAR BEFORE THE CIT(A) FOR WHICH THE LD. CIT(A) PASSED THE EXPARTE ORDER AND THEREAFTER SUSTAINED THE PENA LTY LEVIED BY THE AO U/S. 271 (1) (C) OF THE IT ACT, 1961. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE INTERE ST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN ONE FINAL OPPORTUNITY TO R EPRESENT ITS CASE BEFORE THE CIT(A). CONSIDERING THE TOTALITY O F THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT PROP ER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CAS E AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALS O HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) WITHOUT SEEKIN G ANY ADJOURNMENT UNDER ANY PRETEXT FAILING WHICH THE LD. CIT(A) IS AT LIBERTY TO DECIDE THE ISSUE AS PER FACT AND LAW. T HE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 17.02.2020. SD/- SD/- (BHAVNESH SAINI) (R.K PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE:- 17.02.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 4 DATE OF DICTATION 06.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.02.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 17.02.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 17.02.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 17.02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 17.02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.0 2.2020 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER