Vivsun Properties Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 6458/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6565 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 09-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AMIT GOEL
• Section: 143(3); 142(1)

Judgement Text

ITA NO. 6458/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO. 6458/DEL/2012 A.Y. : 2004-05 M/S VIVSUN PROPERTIES PVT. LTD., 305 (3 RD FLOOR) JAGDAMBA TOWER, 13 COMMERCIAL COMPLEX, PREET VIHAR, NEW DELHI (PAN:AABCV4557C) VS. INCOME TAX OFFICER, WARD 17(4), ROOM NO. 238, CR BUILDING, I.P. ESTATE, NEW DELHI (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. SARABJEET SINGH, SR. DR ASSESSEE BY : SH. AMIT GOEL, CA DATE OF HEARING : 17-02-2016 DATE OF ORDER : 01-03-2016 ORDER PER H.S. SIDHU : JM ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER DAT ED 15.10.2012 PASSED BY THE LD. CIT(A) -19, NEW DELHI RELEVANT TO ASSESS MENT YEAR 2004-05 RELATING TO IMPOSING OF PENALTY U/S. 271(1)(B) OF THE I.T. A CT, 1961. 2. THE GROUNDS RAISED IN THE ASSESSEES APPEAL NO. 6458/DEL/2012 READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY THE CIT(A) IS BAD IN LAW. ITA NO. 6458/DEL/2012 2 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF AO OF IMPOSING PE NALTY OF RS. 1,20,000/- U/S. 271(1)(B) OF THE INCOME TAX ACT, 19 61. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUN D OF APPEAL OR TO ALTER/ MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY HAS FILED THE RETURN OF INCOME DECLARING INCOME OF RS. 17288770/- AFTER MAKING VARIOUS ADDITIONS/ DISALLOWANCES. AGGRIEVED WITH THE ASSESS MENT ORDER, THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) WHO VIDE OR DER DATED 1.8.2011 DELETED AL THE ADDITIONS MADE BY THE AO EXCEPT FOR SMALL ADDIT IONS OF RS. 11,000/- ON ACCOUNT OF DONATION. SUBSEQUENT TO THE ASSESSMENT, THE AO IMPOSED PENALTY OF RS. 1,20,000/- U/S. 271(1)(B) OF THE I.T. ACT, 1961 AGAINST WHICH THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED O RDER DATED 15.10.2012 HAS UPHELD THE ADDITION IN DISPUTE AND DISMISSED TH E APPEAL OF THE ASSESSEE BY UPHOLDING THE ADDITION IN DISPUTE. 4. AGGRIEVED WITH THE AFORESAID FINDING OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSE SSEE HAS SUBMITTED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE ITA T, G BENCH DECISION DATED 10.8.2007 IN THE CASE OF AKHIL BHARTIYA PRATHMIK SH MSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX REPORTED IN [2008] 115 TTJ 419 (DELHI). HE FILED THE COPY OF THE AFORESAID DECISI ON OF THE ITAT, DELHI BENCH. HE REQUESTED BY FOLLOWING THE DECISION OF THE ITAT , DELHI G BENCH DATED 10.8.2007, THE PRESENT ISSUE INVOLVED IN THE ASSESS EES APPEAL MAY BE ALLOWED AND PENALTY IN DISPUTE MADE U/S. 271(1)(B) MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY BE DELETED. ITA NO. 6458/DEL/2012 3 6. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT THE SAME MAY BE UPHELD. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND PRECEDENT REL IED UPON BY LD. COUNSEL OF THE ASSESSEE. WE FIND THAT THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE IS SIMILAR AND IDENTICAL TO THE FACTS AND CIRCUMSTA NCES OF THE CASE CITED BY THE LD. COUNSEL IN THE CASE OF AKHIL BHARTIYA PRATHMI K SHMSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX REPORTED IN [2008] 115 TTJ 419 (DELHI) DECIDED BY THE ITAT, G, BENCH ON 10.8.2007 . FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING THE PORTION OF HE ADS NOTES OF THE AFORESAID DECISION. WHERE ASSESSEE HAD NOT COMPLIED WITH NOTICE UNDER SECTION 142(1) BUT ASSESSMENT ORDER WAS PASSED UNDER SECTIO N 143(3) AND NOT UNDER SECTION 144, THAT MEANT THAT SUBSEQUENT C OMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPL IANCE AND DEFAULTS COMMITTED EARLIER WERE IGNORED BY ASSESSIN G OFFICER AND, THEREFORE LEVY OF PENALTY UNDER SECTION 271(1)(B) W AS NOT JUSTIFIED. 7.1 IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE SIMILAR AND I DENTICAL TO THE CASE LAW CITED BY THE LD. COUNSEL OF THE ASSESSEE, AS AFORESAID , AND THE ISSUE INVOLVED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ITAT, G BENCH DECISION DATED 10.8.2007 IN THE CASE OF AKHIL BHARTIYA PRATHMIK SH MSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX REPORTED IN [2008] 115 TTJ 419 (DELHI). RESPECTFULLY, FOLLOWING THE COORDINATE B ENCH DECISION, WE DELETE THE ADDITION IN DISPUTE AND ALLOW THE EFFECTIVE GROUND RAISED BY ASSESSEE AND ITA NO. 6458/DEL/2012 4 QUASH THE ORDERS OF THE AUTHORITIES BELOW ON THE IS SUE IN DISPUTE BY ALLOWING THE ASSESSEES APPEAL. 8. IN THE RESULT, THE ASSESSEES APPEAL STANDS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/03/2016. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 01/3/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES