ACIT, Chandigarh V. Sh. Vinod Malhotra, Chandigarh

ITA 549/CHANDI/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5070 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS CHANDER KANTA
• Section: 143(3); 92B; 148; 54; 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 549/CHD/2017 ASSESSMENT YEAR: 2008-09 THE ACIT, VS. SHRI VINOD MALHOTRA, CIRCLE 4(1), SCO 305, SECTOR 35-B, CHANDIGARH . CHANDIGARH. PAN NO. AAVPM8609A (APPELLANT) (RESPONDENT) APPELLANT BY : MRS. CHANDERKANTA, ADDL. CIT-DR RESPONDENT BY : SHRI ATUL GOYAL DATE OF HEARING : 23.05.2017 DATE OF PRONOUNCEMENT : 12.07.2017 ORDER PER MS. DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE ASSAILING THE CORRECTNESS OF THE ORDER DATED 31.01.2017 PASSED U/S 1 54 OF INCOME TAX ACT,1961 OF LD. CIT(APPEALS)-2 CHANDIGARH PERTAINING TO 200 8-09 ASSESSMENT YEARS ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE ON T HE ISSUE OF PENALTY LEVIED U/S 271(L)(C) OF THE I.T. ACT, 1961 BY TREAT ING IT AS INFRUCTUOUS BY RELYING ON THE ORDER OF THE TRIBUNAL ON QUANTUM APP EAL WHEREIN THE PROCEEDINGS U/S 148 WERE QUASHED WITHOUT DECIDING T HE ISSUE ON MERIT AND WITHOUT CONSIDERING THE PROVISIONS OF SECTION 2 92B W.R.T. AN APPARENT MISTAKE IN THE NOTICE ISSUED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. C1T(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE BY TRE ATING IT AS INFRUCTUOUS ON THE ISSUE OF PENALTY LEVIED U/S 271(L)(C) OF THE I.T. ACT, 1961 BY RELYING ON THE ORDER OF THE TRIBUNAL ON QUANTUM APPEAL WHER EIN THE ITAT HAD NOT CONSIDERED THE EVIDENTIARY VALUE OF THE 'NOTING SHE ET' WHILE DECIDING THE PROCEEDINGS U/S 148 AS NULL AND VOID BY HOLDING THA T THE NOTICE U/S 148 WAS ISSUED PRIOR TO RECORDING OF REASONS FOR RE-OPENING. 3. THE LD. AR FILED A COPY OF THE ORDER OF THE ITAT DATED 28 .09.2015 PASSED IN THE QUANTUM PROCEEDINGS IN THE YEAR UNDER CONSIDERAT ION WHEREIN THE ASSESSMENT ITSELF STOOD QUASHED RESULTING IN DELETION OF T HE ADDITIONS MADE. A PERUSAL OF THE RECORD SHOWS THAT THE CIT(A) IN THE PEN ALTY PROCEEDINGS 2 ORIGINALLY HAD PASSED THE FOLLOWING ORDER WHICH IS EXTRACTED FROM THE IMPUGNED ORDER : PARA NO. 5.3.1 SINCE THE ORDER ON THE BASIS OF WHICH IMPUGNED PENA LTY ORDER WAS PASSED HAS BEEN QUASHED, THE PRESENT PENALTY APPEAL HAS BECOME INFRUCTUOUS A ND HENCE DISMISSED . PARA NO. 6 'IN THE RESULT THE APPEAL IS DISMISSED.' (EMPHASIS SUPPLIED) 4. CONSIDERING THE APPLICATION OF THE ASSESSEE, THE IMPUGNE D ORDER U/S 250 DATED 12.08.2016 IN APPEAL NO. 82/2/15-16 WAS MODIFIED AS UNDER : THE APPLICATION FILED BY THE ASSESSEE HAS BEEN CONS IDERED. THE QUANTUM APPEAL IN THE SAID CASE HAS BEEN DECIDED BY HON'BLE ITAT, CHANDIG ARH IN THE FAVOUR OF ASSESSEE AND THE ORDER PASSED BY AO U/S 148 R.W.S 143(3) HAS BEEN QUASHED. SINCE, THE ORDER ON THE BASIS OF WHICH IMPUGNED PENALTY ORDER WAS PASSED HAS BEEN QUASHED AND ADDITIONS MADE WERE DELETED, THE PENALTY APPEAL HAS BECOME INFRUCTUOUS AND THE S AME WAS DISMISSED FOR STATISTICAL PURPOSES. (EMPHASIS SUPPLIED) 5. THOUGH THE APPEAL HAS BEEN FILED BY THE REVENUE, HOWE VER, NO INFIRMITY WAS POINTED OUT BY THE LD. SR.DR IN PASSING OF THE SAID ORD ER. ON CONSIDERING THE ORDER PASSED IN THE QUANTUM PROCEEDINGS BY THE CO -ORDINATE BENCH AND CONSIDERING THE AFORESAID FINDING IN THE IMPUGNED ORDER, WE A LSO FIND NO INFIRMITY AS ONCE THE ORDER STANDS QUASHED IN THE QUANTU M PROCEEDINGS, THE OCCASION TO CONSIDER THE ADDITION ON MERITS DOES NOT SUR VIVE. HENCE, SINCE NO ADDITION STANDS ON RECORD, THE PENALTY ORDER BECOMES IN FRUCTUOUS. THE APPEAL OF THE REVENUE IS, ACCORDINGLY, DISMISSED. SAID ORDER WAS P RONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY,2017. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.