DCIt, New Delhi V. M/s Sierra Industrial Enterprises (P) Ltd., New Delhi

ITA 5702/DEL/2010

• Counselvise Citation: 570220114 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 17-01-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: SURENDER KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 5702/DEL/2010 ASSESSMENT YEARS: 2004-05 DCIT, VS. SIERRA INDUSTRIAL ENTERPRISES (P) LTD., CIRCLE 9(1), (NOW MERGED WITH SSIPL RETAIL LTD.), ROOM NO. 163, B-1/4, MOHAN COOPERATIVE IND. ESTATE , C.R. BUILDING, MAIN MATHURA ROAD, NEW DELHI. NEW DELHI. NEW DELHI. AAACS3919D (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. S. MOHANTY, DR RESPONDENT BY : SH. SURENDER KUMAR, CA ORDER PER SMT. DIVA SING, J.M. : THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER DATED 10.09.2010 OF CIT(A)-XII, NEW DELHI ON THE FOLLOWIN G GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE LD. CIT(A ) ERRED IN LAW AS WELL AS ON MERITS IN DIRECTING TO RECOMPUTED PENALT Y IMPOSED U/S 271(1)(C) AT DISALLOWANCE OF RS. 2,78,849/- (I.E. 5 % OF RS. 43,24,615/-) IN PLACE OF RS. 43,24,615/- WHICH WAS IMPOSED BY THE AO U/S 271(1)(C) ON ACCOUNT OF DISALLOWANCE MADE OF RS. 43,24,615/- OUT OF CUSTOMER CLAIM AND DEFECTIVES. ITA NO. 5702/D/2010 2 2. THE APPELLANT CRAVES TO AMEND MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE H EARING OF THIS APPEAL. 2. RIGHT AT THE OUTSET LD. AR, SH. SURENDER KUMAR S UBMITTED THAT THE ISSUE IS COVERED AS THE CIT(A)S ORDER IN QUANTUM P ROCEEDING ON THE ISSUE HAS BEEN CONFIRMED BY THE ITAT. ATTENTION WA S INVITED TO PAGE 74 TO 79 OF THE PAPER BOOK WHICH CONTAINS ITS ORDER DA TED 08.10.2010 IN ITA NO. 1951/DEL/10, WHEREIN THE DEPARTMENT HAD COME IN APPEAL BEFORE THE ITAT ON THE FOLLOWING JUDGMENTS AGAINST THE ACTION OF CIT(A) IN GRANTING RELIEF TO THE ASSESSEE TO THE TUNE OF RS. 41,08,384 /- ON ACCOUNT OF ADDITIONAL SALE PROCEEDS OF CUSTOMER CLAIM & DEFECT S TO THE EXTENT OF 5% HAS BEEN UPHELD AS A DEPARTMENTAL APPEAL HAS BEEN D ISMISSED. A PERUSAL OF THE ORDER IN QUANTUM PROCEEDINGS SHOWS T HAT BEFORE THE ITAT ITS DEPARTMENT HAD COME IN APPEAL ON THE FOLLOWING GROUND: - LD. COMMISSIONER OF INCOME (APPEALS) ERRED, IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN RESTRICTING THE D ISALLOWANCE OF RS. 43,24,615/- MADE BY THE AO ON ACCOUNT OF ADDITIONAL SALE PROCEEDS OF THE CUSTOMER CLAIMS AND DEFECTIVES TO 5% AND THE REBY ALLOWING RELIEF TO THE ASSESSEE AMOUNT TO RS. 41,08,384/-. THE LD. AR RELYING UPON K.C. BUILDERS VS. ACIT 265 ITR 562 (SC) SUBMITTED THAT THE IMPUGNED ORDER DESERVES TO BE UP HELD. 3. THE LD. DR CONFRONTED WITH THE ORDER OF THE TRIB UNAL COULD NOT POINT OUT TO ANY INFIRMITY IN THE DIRECTION GIVEN BY THE CIT(A). 4. IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMS TANCES TAKING INTO CONSIDERATION THE ORDER OF THE TRIBUNAL IN THE QUAN TUM PROCEEDINGS AND ITA NO. 5702/D/2010 3 THE JUDGMENT OF THE APEX COURT RELIED UPON BY THE A SSESSEE BEING SATISFIED BY THE REASONING AND FINDING OF THE CIT(A ). THE GROUND RAISED BY THE DEPARTMENT IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 17.01. 2012. SD/- SD/- (K.D. RANJAN) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17.1.12 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR ITA NO. 5702/D/2010 4