DCIT, New Delhi V. M/s. North Delhi Power Ltd, New Delhi

ITA 6565/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3526 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-05-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 10-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWAROOP
• Assessee Lawyers: S D KAPILA SHRI R R MAURYA; SIDDHARTH KAPIL
• Keywords: Reopening of assessment
• Section: 43B; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO . .. . 6565/DEL/2013 6565/DEL/2013 6565/DEL/2013 6565/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2003 2003 2003 2003 - -- - 04 0404 04 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -16(1), 16(1), 16(1), 16(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. V VV V S. S.S. S. M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., (NOW TATA POWER DELHI DISTRIBUTION (NOW TATA POWER DELHI DISTRIBUTION (NOW TATA POWER DELHI DISTRIBUTION (NOW TATA POWER DELHI DISTRIBUTION LTD.), LTD.), LTD.), LTD.), GRID SUB GRID SUB GRID SUB GRID SUB- -- -STATION BUILDING, STATION BUILDING, STATION BUILDING, STATION BUILDING, HUDSON LINIES, HUDSON LINIES, HUDSON LINIES, HUDSON LINIES, KINGSWAY CAMP, KINGSWAY CAMP, KINGSWAY CAMP, KINGSWAY CAMP, DELHI DELHI DELHI DELHI 110 009. 110 009. 110 009. 110 009. PAN : AABCN6808R. PAN : AABCN6808R. PAN : AABCN6808R. PAN : AABCN6808R. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. SHEFALI SWAROOP, CIT - DR. RESP ONDENT BY : SHRI S.D. KAPILA, SHRI R.R. MAURYA & SHRI SIDDHARTH KAPILA, ADVOCATES. DATE OF HEARING : 01.11.2017 01.11.2017 01.11.2017 01.11.2017 DATE OF PRONOUNCEMENT : 06.11.2017 06.11.2017 06.11.2017 06.11.2017 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2003-04 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XVI, N EW DELHI DATED 16 TH SEPTEMBER, 2013. 2. THE ONLY GROUND RAISED BY THE REVENUE IN THIS AP PEAL IS AGAINST THE CANCELLATION OF THE LEVY OF PENALTY OF `3,10,65 ,485/- WHICH WAS LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF TH E INCOME-TAX ACT, 1961. ITA-6565/DEL/2013 2 3. AT THE OUTSET, IT WAS POINTED OUT BY THE LEARNED COUNSEL THAT THIS PENALTY WAS LEVIED IN RESPECT OF THE ADDITION OF `8 ,45,31,932/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNPAID ENERGY T AX BY INVOKING SECTION 43B OF THE ACT. THIS ADDITION WAS MADE IN THE ASSESSMENT ORDER PASSED U/S 147/143(3) DATED 23 RD DECEMBER, 2009. THE ASSESSEE HAD FILED THE APPEAL AGAINST THE ASSESSMEN T ORDER BEFORE THE LEARNED CIT(A) AND FURTHER TO ITAT. THE ITAT, IN I TA NO.1345/DEL/2011, ORDER DATED 1 ST JANUARY, 2016, HELD THE REOPENING OF ASSESSMENT U/ S 147 TO BE BAD IN LAW. CONSEQUENTLY, THE ASSESSMENT ORDER PASSED U/S 147/143(3) DATED 23 RD DECEMBER, 2009 WAS QUASHED. THE ORDER OF THE ITAT HAS BEEN UPHELD BY HON'BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 4 TH NOVEMBER, 2016 IN ITA NO.698/2016. SINCE THE ASSE SSMENT ORDER IN WHICH THE ADDITION WAS MADE ON WHICH PENAL TY U/S 271(1)(C) IS LEVIED IS QUASHED BY THE ITAT, THE PENALTY CANNOT S URVIVE. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW. 5. AFTER CONSIDERING THE ABOVE FACTS AND SUBMISSION S OF BOTH THE SIDES, WE ENTIRELY AGREE WITH THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT WHEN THE ASSESSMENT ORDER HAS BEE N QUASHED BY THE ITAT, THE PENALTY BASED UPON THE ADDITION MADE IN THE ASSESSMENT ORDER CANNOT SURVIVE. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 06.11.2017 . SD/- SD/- (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. ITA-6565/DEL/2013 3 COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSIONER OF INCOME TA X, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -16(1), NEW DELHI 16(1), NEW DELHI 16(1), NEW DELHI 16(1), NEW DELHI. .. . 2. RESPONDENT : M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., M/S NORTH DELHI POWER LTD., (NOW TATA POWER DELHI DISTRIBUTION LTD.), (NOW TATA POWER DELHI DISTRIBUTION LTD.), (NOW TATA POWER DELHI DISTRIBUTION LTD.), (NOW TATA POWER DELHI DISTRIBUTION LTD.), GRID SUB GRID SUB GRID SUB GRID SUB- -- -STATION BUILDING, HUDSON LINIES, STATION BUILDING, HUDSON LINIES, STATION BUILDING, HUDSON LINIES, STATION BUILDING, HUDSON LINIES, KINGSWAY CAMP, DELHI KINGSWAY CAMP, DELHI KINGSWAY CAMP, DELHI KINGSWAY CAMP, DELHI 110 009. 110 009. 110 009. 110 009. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR