M/s. Tefal India Household Appliances (P) Ltd., New Delhi V. ITO, New Delhi

ITA 7008/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5122 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 26-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Section: 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.7008 & 7009/DEL./2014 ASSESSMENT YEARS 2007-2008 M/S. TEFAL INDIA HOUSEHOLD APPLIANCES (P) LTD., UNIT NO.720, DLF TOWER-B, JASOLA, NEW DELHI. PAN AAACT2568D VS. THE INCOME TAX OFFICER, WARD-16(4), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI PRADEEP DINODIA, C.A. FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 08.08.2017 DATE OF PRONOUNCEMENT : 08.08.2017 ORDER BOTH THE APPEALS BY ASSESSEE HAVE BEEN DIRECTED A GAINST THE ORDER OF LD. CIT(A)-19, NEW DELHI DATED 28 TH FEBRUARY, 2014 FOR THE A.Y. 2007-08 CHALLENGING THE LEVY OF PENALTY UNDE R SECTIONS 271(1)(B) AND 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE A.O. PASS ED THE ASSESSMENT ORDER UNDER SECTION 144 OF THE I.T. ACT DATE D 31 ST DECEMBER, 2009 COMPUTING THE TOTAL INCOME OF ASSESSEE AT RS.13,12,710. THE A.O. ALSO INITIATED PENALTY PROCEE DINGS UNDER SECTIONS 271(1)(B) AND 271(1)(C) OF THE I.T. ACT. THE A.O. VIDE SEPARATE ORDER DATED 25 TH JUNE, 2010 LEVIED THE PENALTY UNDER SECTION 271(1)( B) OF THE I.T. ACT AND VIDE ORDER DATED 28 TH JUNE, 2010 LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. IN THE FORM-35 I.E., APPEAL FILED BEFORE LD. CIT(A) SHOWS THAT THE ASSESSEE FILED ONE A PPEAL BEFORE LD. CIT(A) CHALLENGING THE QUANTUM ASSESSMENT ORDER COMPUTI NG THE INCOME AT RS.13,12,710 AS WELL AS LEVY OF PENALTY UN DER SECTIONS 2 ITA.NO.626/DEL./2017 SHRI MAHESH TYAGI, GHAZIABAD. 271(1)(B) AND 271(1)(C) OF THE I.T. ACT. THE LD. CIT (A) DECIDED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 28 TH FEBRUARY, 2014, AGAINST WHICH, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. CIT(A) NOTED IN HIS FINDINGS THAT THE APPEAL IS TIME BARRED WHICH IS FILED AGAINST THE ORDER OF THE A.O. PASSED UNDER SECTION 144 OF THE I.T. ACT DATED 31 ST DECEMBER, 2009. THE LD. CIT(A) ALSO NOTED THAT ASSESS EE HAS NOT MADE ANY REQUEST FOR CONDONATION OF DELAY. THE LD. CIT(A) ALSO NOTED THAT ASSESSEE IN THE GROUNDS OF APPEAL NOT ONLY CH ALLENGED THE ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE ACT B UT ALSO THE PENALTY ORDERS PASSED UNDER SECTIONS 271(1)(B) AND 2 71(1)(C) OF THE I.T. ACT. THE ASSESSEE ENCLOSED COPY OF THE ASSESSMENT ORDE R AS WELL AS PENALTY ORDERS WITH THE APPEALS FILED BEFORE HIM. THE LD. CIT(A), THEREFORE, NOTED THAT APPEAL CAN BE FILED ONLY QUESTIO NING ONE ORDER AND IF ASSESSEE WANTED TO CHALLENGE THE PENALTY ORDER S THEN, SEPARATE APPEALS SHOULD HAVE BEEN FILED AGAINST THE PENALTY OR DERS. ASSESSEE DID NOT FILE ANY APPEAL AGAINST PENALTY ORDERS. THE A SSESSEE DID NOT MAKE ANY COMPLIANCE BEFORE THE LD. CIT(A) DESPITE SE RVICE OF NOTICE. THE LD. CIT(A) IN THE ABSENCE OF ANY EXPLANATION FOR THE DELAY IN FILING THE APPEAL AND AS TO HOW ONE APPEAL HAS BEEN FILED IN RESPECT OF THREE ORDERS, DISMISSED THE APPEAL OF ASSESSEE IN LIMINE . LD. CIT(A) ALSO NOTED THAT ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT, BILLS AND VOUCHERS BEFORE A.O. THEREFORE, EVEN ON MERIT, THE QU ANTUM ORDER WAS CONFIRMED AND THE APPEAL OF ASSESSEE HAS BEEN DISMIS SED. 3. I HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE PA RTIES. LEARNED COUNSEL FOR THE ASSESSEE VERY FAIRLY SUBMITTED THAT BY MISTAKE THE ASSESSEE FILED ONE APPEAL AGAINST THREE ORD ERS I.E., TWO PENALTY ORDERS AND ONE QUANTUM ORDER BEFORE THE LD. C IT(A). HE HAS HOWEVER SUBMITTED THAT ASSESSEE FILED THREE APPEALS AGAI NST THE IMPUGNED ORDER BEFORE ITAT, DELHI BENCH. HE HAS SUB MITTED THAT 3 ITA.NO.626/DEL./2017 SHRI MAHESH TYAGI, GHAZIABAD. APPEAL OF ASSESSEE IN ITA.NO.7007/DEL./2014 WAS FIL ED AGAINST QUANTUM ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE I.T. ACT, DATED 31 ST DECEMBER, 2009 WHICH WAS HOWEVER DISMISSED IN DEFA ULT, AGAINST WHICH, ASSESSEE HAS FILED MISCELLANEOUS APPL ICATION WHICH IS PENDING FOR DISPOSAL. LEARNED COUNSEL FOR THE ASSESS EE FURTHER SUBMITTED THAT THE APPEAL OF ASSESSEE IN ITA.NO.7007/DEL ./2014 MAY BE CONSIDERED AS FILED AGAINST THE QUANTUM ADDITION AR ISING OUT OF THE EX-PARTE ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE I.T. ACT, DATED 31 ST DECEMBER, 2009. 4. THE LD. D.R. ON THE OTHER HAND, SUBMITTED THAT SINCE ASSESSEE DID NOT FILE ANY SEPARATE APPEALS AGAINST THE PENALTY ORDERS UNDER SECTIONS 271(1)(B) AND 271(1)(C) OF THE ACT BEF ORE THE LD. CIT(A), THEREFORE, BOTH THE PRESENT APPEALS OF THE ASSESSEE AR E NOT MAINTAINABLE AND MAY BE DISMISSED. 5. AFTER CONSIDERING RIVAL CONTENTIONS, I AM OF THE VI EW THAT BOTH THE APPEALS OF THE ASSESSEE ARE NOT MAINTAINABLE I N THE PRESENT FORM. IT IS WELL SETTLED LAW THAT ASSESSEE SHALL HAVE TO FILE SEPARATE THREE APPEALS AGAINST THE QUANTUM ASSESSMENT ORDER, AS W ELL AS BOTH THE IMPUGNED PENALTY ORDERS BEFORE THE LD. CIT(A) IF SO, FEELING AGGRIEVED AGAINST THESE ORDERS. HOWEVER, THE ASSESSEE FILED ONLY ONE APPEAL BEFORE THE LD. CIT(A) AGAINST QUANTUM ASSESSME NT ORDER AS WELL AS BOTH THE PENALTY ORDERS. THE LD. CIT(A) WAS TH EREFORE, JUSTIFIED IN REJECTING THE REQUEST OF THE ASSESSEE AS REGARDS THE PENALTY ORDERS UNDER SECTIONS 271(1)(B) AND 271(1)(C) OF THE I.T. AC T BECAUSE NO APPEALS WERE FILED SEPARATELY AGAINST PENALTY ORDER S BEFORE LD. CIT(A). THEREFORE, THE PRESENT APPEALS FILED BY THE ASSESSEE A RE NOT MAINTAINABLE AND ARE LIABLE TO BE DISMISSED IN LIMINE . SINCE, ASSESSEE HAS ALREADY FILED ONE MORE APPEAL BEFORE THE TRIBUNA L IN ITA.NO.7007/DEL./2014 AND LEARNED COUNSEL FOR THE AS SESSEE SEEKS 4 ITA.NO.626/DEL./2017 SHRI MAHESH TYAGI, GHAZIABAD. LIBERTY TO PURSUE THIS APPEAL BEFORE THE TRIBUNAL AS HAVING BEEN FILED AGAINST THE QUANTUM ASSESSMENT ORDER WHEREBY INCOME IS COMPUTED AT RS.13,12,710, THEREFORE, THE LIBERTY IS GIVEN TO THE ASSESSEE TO PURSUE ITA.NO.7007/DEL./2014 FOR THE PURPOSE OF DECI DING THE QUANTUM ADDITION ON MERITS. HOWEVER, THE PRESENT APPEA LS FILED AGAINST IMPUGNED ORDER AGAINST THE PENALTY ORDERS WITH OUT FILING SEPARATE APPEALS BEFORE CIT(A) AGAINST THE PENALTY O RDERS ARE NOT MAINTAINABLE AND HAVE TO BE DISMISSED. IN VIEW OF THE ABOVE DISCUSSION, BOTH THE APPEALS OF THE ASSESSEE AS FILED AGAINST THE PENALTY ORDERS ARE DISMISSED AS BEING NOT MAINTAINABL E WITH A LIBERTY TO THE ASSESSEE TO PURSUE ITA.NO.7007/DEL./2014 IN ACC ORDANCE WITH LAW, WITH REFERENCE TO QUANTUM ADDITION MADE AS PER THE EX-PARTE ASSESSMENT ORDER PASSED BY THE A.O. UNDER SECTION 144 OF THE I.T. ACT, 1961. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 08 TH AUGUST, 2017 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE // BY ORDER // ASST. REGISTRAR ITAT : DELHI BENCHES : DELHI.