SPL'S Ltd, New Delhi V. DCIT, Circle-9(1), New Delhi

ITA 5417/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6411 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 17-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC-1 : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA.NO.5417/DEL./2019 ASSESSMENT YEAR 2004-2005 M/S. SPLS LIMITED, [FORMERLY SPLS SIDHARTHA LTD.,], E-449, GREATER KAILASH-II, NEW DELHI PIN 110 048. PAN AABCS3155Q [ VS. THE DCIT, CIRCLE 9 (1), NEW DELHI. ( APPELLANT ) (RESPONDENT) F OR ASSESSEE : SHRI S. KRISHNAN, ADVOCATE FOR REVENUE : SHRI PRAKASH DUBEY, SR. DR DATE OF HEARING : 19 . 01 .20 2 1 DATE OF PRONOUNCEMENT : 01 . 02 .20 2 1 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-31, NEW DELHI, DATED 26.04.2019, FOR THE A.Y. 2004-2005, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2 ITA.NO.5417/DEL./2019 M/S.SPLS LIMITED, NEW DELHI. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVE OF BOTH THE PARTIES THROUGH VIDEO CONFERENCING AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSMENT UNDER SECTION 147/143(3) WAS COMPLETED ON 30.11.2011 AFTER MAKING AN ADDITION OF RS.9,40,000/- ON ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY/SHARE CAPITAL. THE A.O. LEVIED THE PENALTY UNDER SECTION 271(L)(C) OF THE I.T. ACT, 1961 AND THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE. 4. LEARNED COUNSEL FOR THE ASSESSEE POINTED-OUT THAT ASSESSEE FILED AN APPEAL AGAINST THE QUANTUM ADDITION BEFORE ITAT, DELHI BENCH VIDE ITA.NO.6483/DEL./2012 FOR ASSESSMENT YEAR UNDER APPEAL WHICH HAVE BEEN DECIDED VIDE ORDER DATED 07.07.2017 AND ORDER OF THE LD. CIT(A) HAVE BEEN SET ASIDE AND THE MATTER IN ISSUE HAVE BEEN RESTORED TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL OF ASSESSEE ON QUANTUM AFRESH. HE HAS SUBMITTED THAT DESPITE THIS FACT WAS SUBMITTED BEFORE LD. CIT(A), THE LD. CIT(A) PROCEEDED TO DECIDE THE PENALTY APPEAL AND DISMISSED THE SAME. HE HAS 3 ITA.NO.5417/DEL./2019 M/S.SPLS LIMITED, NEW DELHI. SUBMITTED THAT STILL THE QUANTUM APPEAL IS PENDING BEFORE THE LD. CIT(A) AS IS RESTORED BY THE TRIBUNAL, THEREFORE, BEFORE DECIDING THE QUANTUM APPEAL, THE LD. CIT(A) SHOULD NOT HAVE DECIDED THE APPEAL OF ASSESSEE OF PENALTY. 5. IN VIEW OF THE ABOVE FACTS, IT IS CLEAR THAT THE LD. CIT(A) DID NOT FOLLOW THE ORDER OF THE TRIBUNAL. SINCE THE QUANTUM APPEAL IS STILL PENDING BEFORE THE LD. CIT(A) AS PER CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, THERE WAS NO JUSTIFICATION TO THE LD. CIT(A) TO HAVE DECIDE THE PENALTY APPEAL EARLY. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE PENALTY APPEAL TO HIS FILE WITH A DIRECTION TO RE-DECIDE THE PENALTY APPEAL AFTER DECIDING THE QUANTUM APPEAL. THE LD. CIT(A) SHALL GIVE REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. 4 ITA.NO.5417/DEL./2019 M/S.SPLS LIMITED, NEW DELHI. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (B.R.R. KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 01 ST FEBRUARY, 2021 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC - 1 BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.