DCIT, New Delhi V. M/s. Actis Advisers Pvt. Ltd., New Delhi

ITA 4819/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4269 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 04-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES I-1 : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA.NO.4819/DEL./2014 ASSESSMENT YEAR 2005-2006 THE DCIT, CIRCLE - 1(1), ROOM NO.392, C.R. BLDG., I.P. ESTATE, NEW DELHI. PIN 110 002 VS. M/S. ACTIS ADVISERS PVT. LTD., MIRA, THE CORPORATE SUITES, BLOCK-D, GROUND FLOOR, 1 & 2, ISHWAR NAGAR, NEW DELHI PIN-110 065. PAN AAACC5281G (APP ELL ANT) (RESPONDENT) FOR REVENUE : SHRI B.P. SINGH, SR. D.R. FOR ASSESSEE : SHRI NAGESH BEHL, C.A. DATE OF HEARING : 04 .0 1 .201 8 DATE OF PRONOUNCEMENT : 0 5 .01 .201 8 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-XX, NEW DELHI, DATED 13 TH JUNE, 2014, FOR THE A.Y. 2005-2006, CHALLENGING THE CANCELLATION OF PEN ALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2 ITA.NO.4819/DEL./2014 ACTIS ADVISERS PVT. LTD.,NEW DELHI. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE A.O . IN PURSUANCE TO THE ORDER OF THE TPO MADE ADDITION OF RS.4,55,08 ,456 IN ASSESSMENT ORDER PASSED ON DATED 12.11.2008. THE AP PEAL OF ASSESSEE HAS BEEN DISMISSED BY LD. CIT(A)-XX, NEW D ELHI, VIDE ORDER DATED 31 ST OCTOBER, 2011. THE A.O. INITIATED THE PENALTY PROC EEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND VIDE SEPARAT E ORDER, LEVIED THE PENALTY, WHICH REMAIN IN CHALLENGE BEFORE LD. CIT(A ). THE LD. CIT(A) IN THE IMPUGNED ORDER CONSIDERED THE MERITS OF THE CASE AND FOLLOWING THE ORDER OF ITAT, DELHI BENCH, IN THE CASE OF VERI ZON COMMUNICATION INDIA (P) LTD., VS. DCIT (2012) 27 TAXMANN.COM 328 (DEL.) AND RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF CIT VS. RELIANCE PETRO PRODUCTS LTD., 322 ITR 158, CANC ELLED THE PENALTY AND ALLOWED THE APPEAL OF ASSESSEE. 3. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET , SUBMITTED THAT THE ASSESSEE PREFERRED APPEAL BEFORE ITAT, I-2 BENCH, NEW DELHI, AGAINST THE QUANTUM ORDER OF LD. CIT(A), DATED 31 ST OCTOBER, 2011 IN ITA.NO.64/DEL./2012 WHICH HAS BEEN ALLOWED BY THE T RIBUNAL VIDE ORDER DATED 29 TH JUNE, 2016, IN WHICH THE ORDERS OF THE AUTHORITIES 3 ITA.NO.4819/DEL./2014 ACTIS ADVISERS PVT. LTD.,NEW DELHI. BELOW HAVE BEEN SET ASIDE AND MATTER IS RESTORED TO THE FILE OF A.O./TPO FOR FRESH ADJUDICATION DENOVO, IN ACCORDAN CE WITH LAW. HE HAS SUBMITTED THAT THE A.O./TPO HAS PASSED THE ORDE R AFRESH IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL VIDE OR DER DATED 21 ST APRIL, 2017, MAKING ADDITION OF RS.1,32,00,160 AND A.O. ISSUED FRESH PENALTY NOTICE UNDER SECTION 271(1)(C) OF THE I.T. ACT, DATED 21 ST APRIL, 2017. COPY OF THE ORDERS AND NOTICE ARE FILED IN TH E PAPER BOOK. HE HAS, THEREFORE, SUBMITTED THAT THE PRESENT PENALTY PROCEEDINGS HAVE BECOME INFRUCTUOUS AND NO INTERFERENCE IS CALLED FO R IN THE MATTER. 4. LD. SR. D.R. DID NOT DISPUTE THE ABOVE CONTENTI ON OF THE LEARNED COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT SINCE FRESH PENALTY PROCEEDINGS HAVE BEEN INITIATED, THEREFORE, NOTHING SURVIVE AT THIS STAGE. 5. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF SUBMISSIONS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT DEPARTMENTAL APPEAL HAS BECOME INFRUCTUOUS AND NO INTERFERENCE I S CALLED FOR AT THIS STAGE. IN THIS CASE, A.O. LEVIED THE PENALTY U NDER SECTION 271(1)(C) OF THE I.T. ACT, ON THE BASIS OF ADDITION MADE BY T HE A.O. IN ARMS 4 ITA.NO.4819/DEL./2014 ACTIS ADVISERS PVT. LTD.,NEW DELHI. LENGTH PRICE DETERMINED BY THE TPO IN A SUM OF RS.4 .55 CRORE IN ASSESSMENT ORDER DATED 12.11.2008, WHICH WAS CONFIR MED BY THE LD. CIT(A) VIDE ORDER DATED 31 ST OCTOBER, 2011. THE ORDERS OF THE AUTHORITIES BELOW ON QUANTUM HAVE BEEN SET ASIDE BY THE TRIBUNAL AND MATTER IS RESTORED TO THE FILE OF THE A.O/TPO. THE A.O. PASSED FRESH ASSESSMENT ORDER AND MADE PART ADDITION OF RS .1.32 CRORES, RESULTING INTO THAT THE ORIGINAL ASSESSMENT ORDER W OULD NO LONGER SURVIVE IN THE EYE OF LAW, ON THE BASIS OF WHICH, P ENALTY WAS IMPOSED BY THE A.O. IN THE PRESENT PROCEEDINGS, PENDING BEF ORE THE TRIBUNAL. SINCE NO ORIGINAL ASSESSMENT ORDER SURVIVE AS PER O RDER OF THE TRIBUNAL DATED 29 TH JUNE, 2016 AND A.O. INITIATED FRESH PENALTY PROCEEDINGS AND PASSED THE ASSESSMENT ORDER AFRESH BY THE A.O, THEREFORE, THE DEPARTMENTAL APPEAL HAS BECOME INFRU CTUOUS AND IS LIABLE TO BE DISMISSED AT THIS STAGE. IN VIEW OF TH E ABOVE FACTS, THERE IS NO NEED TO DECIDE THE DEPARTMENTAL APPEAL ON MER ITS. 4. IN VIEW OF THE ABOVE DISCUSSION, THE DEPARTMENT AL APPEAL STANDS DISMISSED WITHOUT DECIDING ON MERITS. HOWEVE R, THE A.O. IS AT LIBERTY TO TAKE APPROPRIATE ACTION, IF SO ADVISED, IN ACCORDANCE WITH 5 ITA.NO.4819/DEL./2014 ACTIS ADVISERS PVT. LTD.,NEW DELHI. LAW, ON THE BASIS OF THE ASSESSMENT ORDER PASSED AF RESH VIDE ORDER DATED 21 ST APRIL, 2017. THE DEPARTMENTAL APPEAL DISMISSED. 5. IN THE RESULT, APPEAL OF THE DEPARTMENT DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 05 TH JANUARY, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT I - 1 BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.