M/s. Shivji Palace Hotel & Club Pvt. Ltd., Saharanpur V. DCIT, Uttar Pradesh

ITA 5589/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3956 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 1999-2000
• Appeal Filed On: 15-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 5588/DEL/2014 : ASSTT. YEAR : 1998 - 99 ITA NO. 5589/DEL/2014 : ASSTT. YEAR : 1999 - 00 ITA NO. 5590/DEL/2014 : ASSTT. YEAR : 2 000 - 01 ITA NO. 5591/DEL/2014 : ASSTT. YEAR : 2001 - 02 ITA NO. 5592/DEL/2014 : ASSTT. YEAR : 2002 - 03 SHIVJI PALACE HOTEL & CLUB PVT. LTD., C/O HOTEL C LARK INTERNATIONAL, DEHRADUN ROA D, SAHARANPUR (U.P.) VS DY. CO MMISSIONER OF INCOME TAX, CIRCLE SAHARANPUR , UTTAR PRADESH (APPELLANT) (RESPONDENT) PAN NO. A A CCS6882R ASSESSEE BY : SH. ANIL JAIN, ADV. REVENUE BY : SH. S. S. RANA, CIT DR DAT E OF HEARING : 04.01 .201 8 DATE OF PRONOUNCE MENT : 11 .01 .201 8 ORDER PER BENCH : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 01.07.2014 OF THE LD. CIT(A), MUZAFFARNAGAR . 2 . COMMON ISSUE IS INVO LVED IN ALL THESE APPEALS WHICH WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OF F BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3 . THE ONLY GRIEVANCE OF THE ASSESSEE IN THESE APPEALS RELATES TO THE SUSTENANCE OF PENALTY LEVIED BY T HE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. ITA NO S. 5588 TO 5592 /DE L/201 4 SHIVJI PALACE HOTEL & CLUB PVT. LTD. 2 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEALS OF THE ASSESSEE ON QUANTUM ADDITION WERE SUBJECT MATTER OF THE ASSESSEE S APPEAL BEFORE THE ITAT G BENCH, NEW DE LHI IN ITA NOS. 5583 TO 5587/DEL/2014 WHEREIN VIDE ORDER DATED 05.02.2016, THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE LD. CIT(A). 5. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE SUBMIS SIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE QUANTUM ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTIES WERE LEVIED BY THE AO WHICH WERE SUBSEQUENTLY SUSTAINED BY THE LD. CIT(A) WAS A SUBJECT MATTER OF THE ASSESSEE S APPEAL IN ITA NOS. 5583 TO 5587/DEL/2014 FOR THE ASSESSMENT YEAR 1998 - 99 TO 2002 - 03 WHEREIN VIDE ORDER DATED 05.02.2016, THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE LD. CIT (A) AND THE RELEVANT FINDI NGS HAVE BEEN GIVEN IN PARA 7.4 OF THE SAID ORDER WHICH READ AS UNDER: 7.4 WE FIND THAT THE ASSESSEE, AFTER THE DISMISSAL OF THE WRIT PETITIONS, HAS DULY FILED THE APPEALS WITHIN THE 30 DAYS, THEREFORE, THE PERIOD BETWEEN 03.02.2005 AND 20.08.2013 CANNOT BE COUNTED FOR THE PURPOSE OF FILING OF APPEAL AND WE FIND THAT THE ASSESSEE IN FACT HAD FILED THE STATUTORY APPEAL WELL WITHIN 30 DAYS FROM THE DATE OF DISPOSAL OF THE WRIT PETITION. ITA NO S. 5588 TO 5592 /DE L/201 4 SHIVJI PALACE HOTEL & CLUB PVT. LTD. 3 SINCE THE ASSESSEE HAS PREFERRED AN APPEAL ON DISMISSAL OF THE WRIT PETI TION WITHIN 30 DAYS, CIT (A) OUGHT TO HAVE ENTERTAINED THE STATUTORY APPEAL PREFERRED U/S 246A WHICH IS A STATUTORILY RECOGNIZED RIGHT OF THE ASSESSEE AND MUST HAVE BEEN ADMITTED AND ADJUDICATED THE ISSUE ON MERITS. ACCORDINGLY, WE DIRECT THE CIT (A) TO AD MIT ALL THE APPEALS SINCE THEY ARE MAINTAINABLE AND RESTORE THE MATTERS BACK TO THE FILE OF THE CIT (A) TO BE DECIDED ON MERITS AFTER PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. WE ORDER ACCORDINGLY. 7. SINCE, THE ISSUE RELATING TO THE QUANTUM ADD ITION HAS BEEN SET ASIDE TO THE FILE OF THE LD. CIT(A) AND THE IMPUGNED PENALTIES ARE CO - RELATED WITH THE QUANTUM ADDITIONS. THEREFORE, THESE CASES ARE ALSO SET ASIDE TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER CONSI DERING THE OUTCOME OF QUANTUM ADDITION AND BY PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 8 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRONOUNCED IN THE COURT ON 11 /01/2018 ) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /01/2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRA R