ACIT, New Delhi V. M/s Khemka Ispat Ltd., New Delhi

ITA 6065/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59082 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-03-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 30-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANOOP KUMA R SINGH
• Assessee Lawyers: N O N E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA ITA NO. 6065/DEL/2010 ASSESSMENT YEAR: 1996-97 ASSISTANT CIT, VS. M/S. KHEMKA ISPAT LTD., CIRCLE 5(1), 1748/55, NAIWALAN, 2 ND FLOOR, NEW DELHI. ARYASAMAJ ROAD. KAROL BAGH, NEW DELHI. (PAN: AAACK1210F) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANOOP KU MAR SINGH, DR RESPONDENT BY: N O N E DATE OF HEARING : 26.03.2012 DATE OF PRONOUNCEMENT : 30.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 18.10.2010 PASSED FOR ASSESSMENT YEAR 1996-97. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LEARNED C IT(APPEALS) HAS ERRED IN DELETING THE PENALTY OF RS.31,52,649 LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED ITS RETURN OF INCOME ON 30.11.1996 DECLARING A LOSS OF RS.66,43,5 64. IT EMERGES OUT THAT THE ASSESSEE HAD ISSUED DEBENTURES OF RS.2,45,00,00 0 TO THREE PARTIES AND 2 PAID A SUM OF RS.1,34,75,000 TO THE DEBENTURE HOLDE RS AS INTEREST. THIS INTEREST WAS DISALLOWED BY THE ASSESSING OFFICER, H OWEVER, ON APPEAL, THIS DISALLOWANCE WAS DELETED BY THE LEARNED CIT(APPEALS ) VIDE ORDER DATED 8.12.1999. ASSESSING OFFICER INITIATED PENALTY PROC EEDINGS BUT ULTIMATELY DROPPED IT. SUBSEQUENTLY, ASSESSING OFFICER AGAIN I NITIATED THE PENALTY PROCEEDINGS AND IMPOSED A PENALTY BY THE IMPUGNED O RDER DATED 29.12.2006. LEARNED CIT(APPEALS) DELETED THIS PENALTY BY OBSERV ING AS UNDER: 3.1 FURTHER, I FIND THAT EFFECT TO THE AFORESAID O RDER WAS GIVEN BY THE LEARNED A.O. IN TERMS OF HIS ORDER DATED 28.02.2000 AND THE ASSESSED INCOME WAS BROUGHT DOWN TO RS.19,62,290. THEREAFTER , THE LEARNED A.O., VIDE HIS ORDER DATED 06.04.2000 DROPPED THE P ENALTY PROCEEDINGS U/S. 271(10(C) OF THE IT ACT, 1961 INIT IATED IN TERMS OF HIS ORDER DATED 01.03.1999. A COPY OF THIS ORDER IS ALS O AVAILABLE ON RECORD. THOUGH THE PRESENT INCUMBENT A.O. STATES IN HER ORDER DATED U/S 271(1)(C) OF THE IT ACT, 1961 THAT THE DEPARTME NT HAS FILED APPEAL AGAINST THE ORDER OF THE LEARNED CIT(APPEALS) DATED 08.12.99, THE CENTRAL SCRUTINY REPORT SUBMITTED BY THE A.O. ON 22 .02.2000 AND ORDER DATED 06.04.2000 WHEREIN THE PENALTY PROCEEDINGS U/ S. 271(1)(C) OF THE ACT WERE DROPPED CLEARLY STATES THAT NO SECOND APPEAL HAS BEEN FILED BY THE DEPARTMENT. HOWEVER, AS THE A.O. HAS S TATED IN THE IMPUGNED PENALTY ORDER THAT THE DEPARTMENT HAS FILE D APPEAL BEFORE THE ITAT, HE WAS REQUESTED VIDE THIS OFFICER LETTER DATED 30.0.08 TO INTIMATE THE STATUS OF THE APPEAL, IF ANY, FILED BY THE DEPARTMENT. AS 3 PER THE RECORD AVAILABLE WITH ME NO CONFIRMATION OF FILING OF ANY APPEAL BY THE DEPARTMENT BEFORE THE ITAT AND RESULT THEREOF HAS BEEN RECEIVED FROM THE A.O. TILL DATE. 3.2 IN VIEW OF THE AFORESAID AND KEEPING IN VIEW TH E FACT THAT THE LEARNED A.O. WHO INITIATED THE PROCEEDINGS U/S. 271 (1)(C) IN TERMS OF ASSESSMENT ORDER DATED 01.03.1999 HIMSELF HAS DROPP ED THE PENALTY PROCEEDINGS, VIDE HIS ORDER DATED 06.04.2000, I DO NOT UNDERSTAND AS TO ON WHAT BASIS THE LEARNED A.O. HAS PASSED THE IM PUGNED PENALTY ORDER. A PERUSAL OF THE PENALTY ORDER DATED 29.12.2 006 DOES NOT INDICATE THAT THERE IS ANY ORDER OF THE ITAT CONFIR MING THE DISALLOWANCE OF RS.13475000 MADE ON ACCOUNT OF PAYM ENT OF INTEREST. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THAT TH E PENALTY ORDER U/S. 271(1)(C) OF THE ACT DATED 29.12.06 IS NOT SUSTAINA BLE IN LAW AND THE PENALTY IN QUESTION IS BEING CANCELLED. 3. IN RESPONSE TO THE NOTICE OF HEARING, NO ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO DI SPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE. THIS APPEAL WAS LISTED FOR HEARING ON 2.6.2011. LEARNED DR SOUGHT ADJOURNMENT AND THEREAFTER IT WAS ADJOURNED ON NUMBER OF OCCASIONS. THE REVENUE IS UNABLE TO POINT OUT WH ETHER THE ORDER OF THE LEARNED CIT(APPEALS) DATED 8.12.1999 DELETING THE D ISALLOWANCE WAS REVERSED BY ANY HIGHER APPELLATE AUTHORITY OR NOT. LEARNED FIRST APPELLATE AUTHORITY HAS SPECIFICALLY OBSERVED THAT THE VERY B ASIS TO INITIATE PENALTY PROCEEDINGS NO MORE SURVIVE AFTER THE ORDER OF THE LEARNED CIT(APPEALS). 4 ASSESSING OFFICER FAILED TO CONFIRM ABOUT THE FILIN G OF APPEAL AGAINST THIS ORDER BEFORE THE ITAT. IN SUCH SITUATION, TO OUR MI ND THIS APPEAL OUGHT TO HAVE NOT FILED WITHOUT PLEADING SPECIFIC FACTS IN T HIS REGARD. WE DO NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 30.03.2 012 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/03/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR