ITO, New Delhi V. M/s Shree Sidhbali Exports (P) Ltd., New Delhi

ITA 5121/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3853 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 23-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Section: 27; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER I.T.A NO. 5121/DEL/10 ASSTT. YEAR 2006-07 ITO, WARD-8(3) ROOM NO. 196-A C.R. BUILDING, NEW DELHI. VS. M/S. SHREE SIDHBALI EXPORTS (P) LTD., PLOT NO. 65, VIJAY LAXMI APARTMENT, 98 I.P. EXTN. NEW DELHI. (APPELLANT) (RESPONDENT) AND I.T.A NO. 4975/DEL/10 ASSTT. YEAR 2006-07 SHREE SIDHBALI EXPORTS PVT. LTD. 7, KIRAN VIHAR, NEW DELHI 110 092 VS. ITO WARD-8(3) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KISHORE B SR. DR. RESPONDENT BY: SHRI SANAT KAPOOR, ADVOCATE ORDER PER BENCH: ITA NOS 5121, 4975/DEL/10 ASSTT. YEAR 2006-07 2 THE ASSESSEE AND REVENUE ARE IN CROSS APPEALS AGAIN ST THE ORDER OF LD. CIT(A) DATED 23 RD AUGUST, 2010 PASSED FOR ASSTT. YEAR 2006-07. THE REVENUE HAS PLEADED THAT LD. CIT(A) HAS ERRED I N DELETING THE PENALTY LEVIED U/S 271(1)(C) ON THE ADDITIONS OF ` 60,79,764/- AND ` 17,78,311/-. WHEREAS ASSESSEE IS IMPUGNING THE PENA LTY LEVIED U/S 271(1)(C) WHICH WAS CONFIRMED BY THE LD. CIT(A). IN OTHER WORDS, LD. CIT(A) HAS PARTLY CONFIRMED THE PENALTY AND THAT PA RT OF THE ORDER IS BEING CHALLENGED BY THE ASSESSEE. 2. LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT ASSTT. ORDER WAS PASSED U/S 144 OF THE INCOME TAX A CT. THE AO HAS MADE VARIOUS ADDITIONS AND ASSESSEE CHALLENGED THOS E ADDITIONS BEFORE THE LD. CIT(A). LD. FIRST APPELLATE AUTHORITY HAS P ARTLY DELETED THE ADDITIONS. THE REVENUE AS WELL AS THE ASSESSEE HAVE CHALLENGED THE ORDER OF LD. CIT(A) IN ITA NO. 1152, 2344/DEL/2010 . BOTH THESE APPEALS HAVE BEEN ALLOWED FOR STATISTICAL PURPOSES AND THE ISSUES HAVE BEEN REMITTED TO THE AO FOR READJUDCIATION IN ACCORDANCE WITH THE LAW. HE PLACED ON RECORD COPIES OF THE TRIBUNAL ORDER DATED 11 TH JANUARY, 2011 AND SUBMITTED THAT IN VIEW OF THIS ORDER THE VERY B ASIS FOR VISITING THE ASSESSEE WITH PENALTY NO MORE SURVIVE. HE PREYED TH AT THE IMPUGNED ORDER BE SET ASIDE. LD. DR ON THE OTHER HAND WAS UN ABLE TO CONTROVERT THE SUBMISSION OF LD. COUNSEL FOR THE ASSESSEE. HOW EVER, HE SUBMITTED ITA NOS 5121, 4975/DEL/10 ASSTT. YEAR 2006-07 3 THAT THE ISSUE REGARDING LEVY OF PENALTY BE ALSO RE STORED TO THE FILE OF AO FOR FRESH ADJUDCIAITON. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. THE ASSTT. ORDER HAS ALREADY BEEN SET ASIDE. IT IS TO BE PASSED AFRESH. THEREFORE, THE VERY BASIS WHICH WOULD ENABLE THE AO TO COMPUTE THE PENALTY UNDER CLAUSE III OF SECTION 271(1)(C) IS NO MORE AVAILABLE AND THE IMPUGNED ORDER DESERVES TO BE SET ASIDE. AS FAR AS THE CONTENTION OF LD. DR IS CONCERNED THAT IT BE REMITT ED TO THE AO FOR FRESH ADJUDICATION, WE ARE OF THE OPINION THAT SECTION 27 1(1) OF THE ACT PROVIDE THAT IF THE AO, LD. CIT (A) OR THE COMMISSIONER IN THE COURSE OF ANY PROCEEDING UNDER THIS ACT IS SATISFIED THAT ANY PER SON HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISH INACCURATE PARTICU LARS OF SUCH INCOME THEN HE MAY DIRECT THAT SUCH PERSONS SHALL PAY BY W AY OF A PENALTY. IT IS TO BE COMPUTED AS PER SUB CLAUSE III OF SECTION 271 (1)(C). THUS, IT IS THE AO OR LD. CIT(A) OR CIT IN THE COURSE OF ANY PROCEE DING UNDER THIS ACT, AS MAY BE THE CASE, IF SATISFIED MAY INITIATE THE P ENALTY PROCEEDING. IN THE FRESH ASSESSMENT PROCEEDING, WE DO NOT KNOW WHE THER AO WOULD BE SATISFIED OR NOT FOR INITIATING THE PENALTY PROCEED ING. IT IS HIS DISCRETION. THEREFORE, WE DO NOT SEE ANY JUSTIFICATION TO RESTO RE PENALTY PROCEEDING TO THE FILE OF AO FOR FRESH ADJUDICATION. THE PENAL TY IS SIMPLY DELETED ON ITA NOS 5121, 4975/DEL/10 ASSTT. YEAR 2006-07 4 THE GROUND THAT ASSTT. ORDER WHICH ENABLE THE AO TO VISIT THE ASSESSEE WITH PENALTY DOES NOT SURVIVE, IN VIEW OF THE TRIBU NALS ORDER. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AND APPEAL OF THE REVENUE BECOMES REDUNDANT. HENCE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.5.2011. SD/- SD/- [K.G. BANSAL] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.5.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT