M/s. Amtrac Automotive India Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4886/DEL/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9256 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 28-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER KUMAR SRIVASTAVA
• Assessee Lawyers: J P SONDHI
• Keywords: Bogus Share capital
• Section: 271(1)(c); 153A; 68; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4886/DEL./2015 (ASSESSMENT YEAR : 2003-04) ITA NO.4887/DEL./2015 (ASSESSMENT YEAR : 2004-05) M/S. AMTRAC AUTOMOBILE INDIA PVT. LTD., VS. ACIT, C/O M/S. LALLY AUTOMOBILES (P) LTD., CENTRAL CIRC LE 23, D 196, OKHLA INDUSTRIAL AREA, PHASE-1, NEW DELHI . NEW DELHI 110 020. (PAN : AAECA2171R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI J.P. SONDHI, ADVOCATE REVENUE BY : SHRI SAMEER KUMAR SRIVASTAVA, CIT DR DATE OF HEARING : 12.12.2018 DATE OF ORDER : 21.12.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING DISP OSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUSSIO N. 2. THE APPELLANT, M/S. AMTRAC AUTOMOBILE INDIA PVT. LTD. (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG THE PRESENT APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDERS BOTH DATED 26.03.2015 PASSED BY LD. CIT (APPEALS)-30, NEW DELHI QUA THE ASSESSME NT YEARS 2003-04 ITA NO.4886 & 4887/DEL./2015 2 & 2004-05 CONFIRMING THE PENALTIES LEVIED U/S 271(1 )(C) OF THE INCOME- TAX ACT, 1961 (FOR SHORT THE ACT) ON THE IDENTICA L GROUNDS INTER ALIA THAT:- (1) THAT THE ORDER OF THE AUTHORITIES BELOW IS AG AINST LAW AND FACTS OF THE CASE. (2) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)- 30 HAS ERRED IN NOT ACCEPTING THE ASSESSEE'S CONTEN TION THAT THE PENALTY PROCEEDINGS U/S 271(1)(C) ARE THE INDEP ENDENT PROCEEDINGS . (3) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)- 30 HAS ERRED IN CONCURRING WITH THE ORDER OF THE AU THORITIES BELOW AND HAS FURTHER ERRED IN CONFIRMING THE PENAL TY IMPOSED U/S 271 (1)(C) (RS.36,59,2501- & RS.25,72,5 00/- FOR AYS 2003-04 & 2004-05 RESPECTIVELY) BY NOT APPRECIA TING THE FACTS OF THE CASE AND ALSO BY NOT ACCEPTING THE SUBMISSION MADE BY THE ASSESSEE AS PER DETAILS BELO W:- I) WHETHER THE SEARCH WAS CARRIED OUT AT THE PREMIS ES OF THE ASSESSEE AND ALSO WITHIN THE PROVISIONS OF SECT ION 132 ? II) WHETHER THE SEARCH & SEIZURE OPERATION COULD B E CONDUCTED IN THE ABSENCE OF THE ASSESSEE OR HIS AUT HORIZED REPRESENTATIVE AND THE SAME COULD BE TREATED AS VAL ID SEARCH? III) WHETHER IN PANCHNAMA, THE NAME OF THE ASSESSE E COMPANY WAS MENTIONED? IV) WHETHER ANY INCRIMINATING DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH AGAINST THE ASSESSEE? V) WHETHER THE ASSESSEE IS COVERED U/S 153A ? (4) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)- 30 HAS ERRED IN NOT ADJUDICATING THE GROUNDS TAKEN BY THE ASSESSEE AS MENTIONED ABOVE. ITA NO.4886 & 4887/DEL./2015 3 (5) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)- 30 HAS ERRED IN NOT ACCEPTING THE SUBMISSION MADE B Y THE APPELLANT TO KEEP THE APPEAL IN ABEYANCE AS THE QUA NTUM APPEAL IS PENDING BEFORE HON'BLE ITAT 'A BENCH, N EW DELHI. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T COMPLETED UNDER SECTION 143(3)/153A OF THE ACT, PENALTY PROCEEDINGS WERE INITIATED IN BOTH THE AFORESAID CASES ON THE GROUND THAT ADDITIO NS OF RS.70,00,000/- & RS.1,00,00,000/- IN AYS 2003-04 & 2004-05 RESPECT IVELY WERE MADE U/S 68 OF THE ACT AND CONSEQUENTLY, AO PROCEEDED TO INITIATE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR CONCEALMEN T OF INCOME WITH REGARD TO THE BOGUS SHARE APPLICATION MONEY STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE. DECLINING THE CONTENTION S RAISED BY THE ASSESSEE, AO PROCEEDED TO LEVY THE PENALTIES OF RS. 36,59,250/- AND RS.25,72,500 IN AYS 2003-04 & 2004-05 RESPECTIVELY. 3. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS CONFIRMED THE PENALTIES BY DISMISSING T HE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEALS. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.4886 & 4887/DEL./2015 4 5. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT ADDITION MADE IN BOTH THE CASES U/S 6 8 OF THE ACT HAS SINCE BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.2277, 2278 & 4742/DEL/2012 VIDE ORDER DATED 28.04.2017 AND AS SUCH, PENALTIES LEVIED ARE NOT SUSTAINABLE AND BROUGHT ON RECORD THE COPY OF THE ORDER OF THE TRIBUNAL DATED 28.04.2017 (SUPRA). 6. UNDISPUTEDLY, COORDINATE BENCH OF THE TRIBUNAL V IDE ORDER DATED 28.04.2017 (SUPRA) DELETED THE ADDITION MADE U/S 68 OF THE ACT. IN THESE CIRCUMSTANCES, THE PENALTY LEVIED BY THE AO AND CON FIRMED BY LD. CIT (A) IS NOT SUSTAINABLE IN VIEW OF THE LAW LAID DOWN BY THE HONBLE APEX COURT IN CASE CITED AS K.C. BUILDERS & ANR VS. ACIT 265 ITR 562 (SC) BECAUSE WHEN THE ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED HA VE BEEN DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT AND IN SUCH CASE, NO PENALTY CAN SURVIVE AND THE PENALTY I S LIABLE TO BE CANCELLED. SO, IN VIEW OF THE MATTER, PENALTIES LEVIED BY TH E AO AND CONFIRMED BY THE LD. CIT (A) IS ORDERED TO BE DELET ED. CONSEQUENTLY, BOTH THE APPEALS FILED BY THE ASSESSEE STANDS ALLOW ED. ORDER PRONOUNCED IN OPEN COURT ON THIS 21 ST DAY OF DECEMBER, 2018. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 21 ST DAY OF DECEMBER , 2018 TS ITA NO.4886 & 4887/DEL./2015 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-30, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.