ITO, New Delhi V. Sh. Ajay Kharbanda, Delhi

ITA 6481/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7481 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A, NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.6481 /DEL/2012 ASSESSMENT YEAR : 2008-09 ITO, WARD 34(1), VS. SH. AJAY KHARBANDA, NEW DELHI R-41D, DILSHAD GARDEN, DELHI 110 095 GIR / PAN:AEGPK9669F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y. KAKKAR, DR RESPONDENT BY : SHRI RAKESH NANDA, CA ORDER PER T.S. KAPOOR, AM: THIS IS REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A) DATED 16.10.2012. THE REVENUE IS AGGRIEVED BY THE ACTION OF LD. CIT(A) BY WHICH HE HAD DIRECTED THE A.O. TO RESTRICT THE PENA LTY U/S 271(1)(C) OF THE ACT TO THE CONCEALED INCOME OF RS.36,69,970/-. 2. AT THE OUTSET LD. A.R. OF THE ASSESSEE FILED A C OPY OF TRIBUNAL ORDER DATED 04.03.2014 IN I.T.A. NO. 3855 AND SUBMITTED T HAT QUANTUM IN THE PRESENT CASE HAS BEEN SET ASIDE BY THE TRIBUNAL FOR FRESH ADJUDICATION AND, THEREFORE, THE PENALTY ORDER CANNOT BE SUSTAINED AN D IT IS NEEDED TO BE DISMISSED. LD. D.R. ON THE OTHER HAND SUBMITTED TH AT THE PENALTY ORDER NEEDS TO BE SET ASIDE AS HAS BEEN DONE IN QUANTUM O RDER AS WHEN A.O. PASSES A FRESH ASSESSMENT ORDER THEN HE WOULD REVIVE PENAL TY ORDER ALSO. 3. WE HAVE HEARD RIVAL PARTIES AND HAVE ONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT A.O. HAD MADE ADDITIONS O N ACCOUNTS OF THREE CREDITORS AS DETAILED BELOW: ITA NO.6481/DEL/2012 2 I) MYSORE MERCANTILE CO. LTD. RS.36,69,970/- II) KARNATAKA LIMPO CEMENT LTD. RS.04,71,908/- II) TERAPANASH FOOD INDUSTRIES LTD. RS.16,55,391/- 4. THE LD. CIT(A) HAD ALLOWED RELIEF IN THE CASE OF KARNATAKA LIMPO LTD. AND TERAPANASH FOOD IND. LTD. AND THEREFORE, L D. CIT(A) IN PENALTY HAD DIRECTED THE A.O. TO RESTRICT THE PENALTY TO CONCEA LMENT OFRS.36,69,970/- ONLY. THE REVENUE IS IN APPEAL AGAINST THIS DIRECT ION. 5. WE FURTHER FIND THAT VIDE ORDER DATED 04.03.201 4 IN I.T.A. NO. 3855, THE HONBLE TRIBUNAL HAS SET ASIDE THE ISSUE OF ADD ITION OF RS.4,71,908/- AND RS.16,55,391/- TO THE OFFICE OF A.O. FOR RE-ADJUDIC ATION. THEREFORE, THE ASSESSMENT ORDER PASSED IN THAT ORDER HAS BECOME NU LL AND VOID TO THE EXTENT OF SET ASIDE AND THE A.O. WILL PASS A FRESH ORDER I N THIS RESPECT. THEREFORE, THE PENALTY IMPOSED ON ACCOUNT OF EARLIER ASSESSMEN T ON SET ASIDE ISSUES STANDS NULLIFIED AND CANNOT STAND ON ITS FEET AND, THEREFORE, THE APPEAL OF THE REVENUE IS DISMISSED. THE CONTENTION OF LD. D.R. T HAT IT SHOULD BE SET ASIDE, DOES NOT HOLD ANY FORCE IN VIEW OF THE FACT THAT SI NCE ASSESSMENT ITSELF HAS BEEN SET ASIDE, NO CONSEQUENT PENALTY PROCEEDINGS C AN STAND. HOWEVER, A.O. WILL BE AT LIBERTY TO PASS A FRESH PENALTY ORD ER IF REQUIRED AFTER PASSING FRESH ASSESSMENT ORDER. 4. IN VIEW OF ABOVE, APPEAL FILED BY REVENUE IS DIS MISSED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DEC., 2014. SD./- SD./- ( I. C. SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 19 TH DEC., 2014 SP ITA NO.6481/DEL/2012 3 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 17.12 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 17/18.12 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER