Oriental Insurance Company Ltd., New Delhi V. ACIT LTU, New Delhi

ITA 5952/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98328 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-12-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Question of law
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , AND SHRI L.P. SAHU, ACCOUNTANT MEMBER, ITA NO. 5952 /DEL /20 1 2 ASSESSMENT YEAR : 20 0 4 - 0 5 ORIENTAL INSURANCE COMPANY LTD. VS. THE A.C.I.T A - 25 - 27, ASAF ALI ROAD CIRCLE LTU ORIENTAL HOUSE, N EW DELHI NEW DELHI PAN : A AACT 0627 R [APPELLANT] [RESPONDENT] DATE OF HEARING : 1 7 . 1 2 . 2015 DATE OF PRONOUNCEMENT : 31 . 12 .2015 APPELLANT BY : SHRI TARANDEEP SINGH, CA RESPONDENT BY : S MT. SULEKHA VERMA, CIT - DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - LTU , NEW DELHI, DATED 1 0 / 1 0 /2 01 2 FOR A.Y 200 4 - 0 5 . 2 ITA NO. 5952 /DEL/20 1 2 2 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASSESSEE RELATES TO THE UPHOLDING OF THE PENALTY U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT ] BY THE LD. CIT(A) . 3. AT THE VERY OUTSET OF THE OPENING OF THE ARGUMENTS, THE LD. AR REFERRED TO THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF THE VERY ASSESSEE ITSELF IN ITA NO. 174/2013 DATED 15 TH SEPTEMBER, 2105 WHEREIN AT PARA NO. 24, THE HON'BLE HIGH COURT HAS SET ASIDE THE ORDER PASSED BY THE TRIBUNAL BY ALLOWING THE APPEAL OF THE ASSESSEE. IN VIEW OF THE SAID DECISION, THE LD. AR PRAYED THAT THE PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) MAY BE CANCELLED. 4. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE BASIS OF LEVY OF PENALTY IN THIS CASE IS THE TRIBUNAL ORDER IN THE QUANTUM APPEAL. SINCE THE PENALTY WAS LEVIED ON THE BASIS OF THE ORDER OF THE TRIBUNAL DATED 20.07.2011 WHICH THE HON'BLE HIGH COURT IN THE CASE OF THE ASSESSEE ITSELF [SUPRA] HAS SET ASIDE VIDE PARA 24 ORDER DATED 15.09.2015, THE PENALTY DOES NOT SURVIVE AND THE 3 ITA NO. 5952 /DEL/20 1 2 3 SAME IS HEREBY CANCELLED. PARA 24 OF THE ORDER OF THE HON'BLE HIGH COURT IS R EPRODUCED HEREINBELOW FOR READY REFERENCE: IN VIEW OF THE AFORESAID, WE FIND CONSIDERABLE MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE AO DID NOT HAVE THE JURISDICTION TO TAX THE PROFITS AND GAINS FROM SALE/REALIZATION OF INVESTMENTS U/S 147 OF THE AC T. THE FIRST AND THE THIRD QUESTIONS OF LAW ARE THEREFORE, ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN VIEW OF OUR DECISION THAT THE AO COULD NOT ASSUME JURISDICTION TO REOPEN THE ASSESSMENT U/S 147 OF THE ACT, IT IS NOT NECESSARY TO A DDRESS AND THE SECOND QUESTION OF LAW, WHICH RELATES TO THE TAXABILITY OF PROFITS ON SALE OF INVESTMENTS ON MERITS. IN VIEW OF THE ABOVE, THE GROUNDS RAISED BY THE ASSESSEE STAND ALLOWED BY DELETING THE PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CI T(A). 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 1 . 12 .2015 . S D S D / - ( L.P. SAHU ) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 1 S T DECEMBER , 2015 VL/ 4 ITA NO. 5952 /DEL/20 1 2 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI