M/s. A.K. Nair & Co., New Delhi V. ACIT, New Delhi

ITA 4683/DEL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7092 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: A K NAIR
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO.4683/DEL/2011 ASSESSMENT YEAR : 2007-08 A.K. NAIR & CO., C-192, SARVODAYA ENCLAVE, NEW DELHI. PAN : AAGFA5904R VS. ACIT, CIRCLE 37 (1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.K. NAIR, ASSESSEE. REVENUE BY : MRS. ANUSHA KHURANA, SR. DR ORDER PER I.P. BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 11 TH AUGUST, 2011 FOR ASSESSMENT YEAR 2007-08. 2. IN THE PRESENT APPEAL THE ASSESSEE IS CONTESTING THE LE VY OF CONCEALMENT PENALTY OF ` 1,43,729/- WHICH HAS BEEN C ONFIRMED BY THE CIT (A). THE PENALTY IS LEVIED ON THE ADDITION MADE IN RESPECT OF DEPRECIATION OF ` 4,27,000/-. THE MATTER IN QUANTU M WAS SET ASIDE BY THE TRIBUNAL VIDE ORDER DATED 14 TH OCTOBER, 2011 PASSED IN ITA NO.3065/DEL/2010. THE COPY OF THE SAID ORDER IS PLAC ED ON RECORD. 3. RELYING UPON THE AFOREMENTIONED DECISION OF THE T RIBUNAL IN QUANTUM PROCEEDINGS ACCORDING TO WHICH THE QUANTUM H AS BEEN SET ITA NO.4683/DEL/2011 2 ASIDE TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AS PER THE PROVISIONS OF LAW, IT WAS PLEADED BY THE ASSESSEE THAT PENALTY LEVIED HAS NO LEGS TO STAND AND, THEREFOR E, THE APPEAL SHOULD BE ALLOWED. 4. ON THE OTHER HAND, IT WAS THE CASE OF THE LEARNED DR THAT SINCE THE MATTER HAS BEEN RESTORED ONLY, PENALTY CAN BE CON SIDERED ON THE BASIS OF THE FACTS AVAILABLE ON RECORD AND THE APPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED AS ON THE FACTS OF THE CASE, LEAR NED CIT (A) HAS UPHELD THE LEVY OF PENALTY. ALTERNATIVELY, SHE PLEADED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO LEVY PENALTY IN CA SE THE ADDITION IS AGAIN MADE BY THE ASSESSING OFFICER IN PURSUANCE OF TH E DIRECTIONS GIVEN BY THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE CAREFULLY BEEN CONSIDERED. THERE IS A FORCE IN THE C LAIM OF THE ASSESSEE THAT SINCE QUANTUM HAS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, THE LEVY OF PENALTY CANNOT BE CONFIR MED AT THIS STAGE. THEREFORE, THE ORDER OF THE CIT (A) CONFIRMI NG THE PENALTY HAS TO BE SET ASIDE IN THE CURRENT SITUATION. EQUALLY, WE F IND FORCE IN THE ARGUMENTS OF THE LEARNED DR THAT THE ASSESSING OFFICER SH OULD BE GIVEN LIBERTY TO RE-INITIATE PENALTY PROCEEDINGS IF SO WARRANTED BY LAW IF THE ADDITION IS AGAIN MADE TO THE INCOME OF THE ASSESSEE IN PURSUANCE OF THE AFOREMENTIONED ORDER OF THE TRIBUNAL DATED 1 4 TH OCTOBER, 2011. WITH THESE DIRECTIONS, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED CIT (A) AND THE LEVY OF PENALTY IS CANCELLED AND THE ASSESSING OFFICER IS GIVEN THE LIBERTY TO RE-INITIATE THE CONC EALMENT PENALTY PROCEEDINGS IF SO WARRANTED BY THE LAW IN CASE THE ADD ITION IS AGAIN MADE. WITH THESE OBSERVATIONS THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO.4683/DEL/2011 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.12.20 11. SD/- SD/- [G.D. AGRAWAL] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED, 29.12.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES