ACIT, Range-II, V. Rubber Udyog Vikas Pvt. Ltd.,

ITA 762/DEL/2005

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9641 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 22-09-2009
• Assessment Year: 1994-1995
• Appeal Filed On: 15-02-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Retrospective amendment; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `I : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.762/DEL./2005 (ASSESSMENT YEAR : 1994-95) ACIT, RANGE II, VS. M/S RUBBER UDYOG VIKAS PVT. L TD., FARIDABAD. MUJESSAR, FARIDABAD. (PAN/GIR NO.N.A.) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, ADV. REVENUE BY : SHRI H.K. LAL, SR.DR ORDER PER K.D. RANJAN: AM THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 19 94-95 ARISES OUT OF THE ORDER OF CIT(A), FARIDABAD. 2. THE ONLY ISSUE FOR CONSIDERATION RELATES TO IMPO SITION OF PENALTY U/S 271(1)(C). IN THIS CASE, ITAT, DELHI BENCH I IN ITS ORDER DATED 15.1.2006 CONFIRMED THE CANCELLATION OF PENALTY U/S 271(1)(C) OF THE I.T. ACT, 1961 ON T HE GROUND THAT THERE WAS NO PROPER RECORDING OF SATISFACTION DURING THE COURSE OF ASSE SSMENT PROCEEDINGS. ON FURTHER APPEAL BY THE REVENUE BEFORE THE HONBLE PUNJAB &HARYANA H IGH COURT, THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE TRIBUNAL VIDE ORDE R DATED 6.11.2008 FOR DECIDING THE ISSUE OF PENALTY AFRESH IN ACCORDANCE WITH THE PROVISIONS OF LAW. 3. DURING THE COURSE OF HEARING AS DIRECTED BY THE HONBLE P&H HIGH COURT, THE MATTER WAS FIXED FOR HEARING. IT HAS BEEN SUBMITT ED BY THE LD.SR.DR THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS DELETED TH E PENALTY ON THE GROUND THAT THE ASSESSING OFFICER HAD NOT RECORDED THE SATISFACTION AS REQUIRED UNDER THE LAW AND AS EXPLAINED BY THE HONBLE PUNJAB & HARYANA HIGH COUR T IN THE CASE OF MANISH IRON STORE. SINCE THE ISSUE HAS NOT BEEN DECIDED ON MERITS, A R EQUEST HAS BEEN MADE BY THE REVENUE TO SET ASIDE THE MATTER TO THE FILE OF THE COMMISSI ONER OF INCOME-TAX (APPEALS). HE PLACED RELIANCE ON THE DECISION OF THE HONBLE DELH I HIGH COURT IN THE CASE OF CIT VS. HARIG CRANK SHAFTS LTD., 211 TAXATION 335 WHEREIN I T HAS BEEN HELD THAT IN VIEW OF I.T.A. NO.762/DEL./2005 (A.Y. : 1994-95) 2 RETROSPECTIVE AMENDMENT MADE IN SECTION 271 BY FINA NCE ACT, 2008 W.E.F. 1.4.1989, THE MATTER HAS TO BE DECIDED ON MERITS. ON THE OTHER H AND, LD.AR OF THE ASSESSEE SUBMITTED THAT POSITION OF LAW PRE AND POST AMENDMENT IS SIMI LAR, INASMUCH AS, THE ASSESSING OFFICER HAS TO ARRIVE AT A PRIMA FACIE SATISFACTION DURING THE COURSE OF PROCEEDINGS WITH REGARD TO THE ASSESSEE HAVING CONCEALED PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BEFORE INITIATING PENALTY PROCEEDINGS. HE PLACED RELIANCE ON DECISIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF MADHUSHREE GUPTA AND BRITISH AIRWAYS PLC VS. UOI AND ANR., 225 CTR 01. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEA LS), WE FIND THAT HE HAD NOT DECIDED THE MATTER ON MERITS. THE PENALTY HAS BEEN DELETED ON THE GROUND THAT SATISFACTION WAS NOT RECORDED BY THE ASSESSING OFFI CER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SINCE THE LAW HAS BEEN AMENDED WITH R ETROSPECTIVE EFFECT FROM 1.4.1989, WE SET ASIDE THIS MATTER TO THE FILE OF THE COMMISS IONER OF INCOME-TAX (APPEALS) WITH DIRECTION TO DECIDE THE LEVY OF PENALTY ON MERITS A FTER HEARING THE ASSESSEE. THE CIT(A) IS ALSO DIRECTED TO KEEP IN MIND THE DECISION OF HO NBLE DELHI HIGH COURT IN THE CASE OF BRITISH AIRWAYS & MADHUSHREE GUPTA, REFERRED TO ABO VE BY THE LD.AR OF THE ASSESSEE. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN OPEN COURT ON 25.09.2009. [ RAJPAL YADAV ] [ K. D. RAN JAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : SEPT. 25, 2009. *SKB* COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), FARIDABAD. 5. DIT(DR), ITAT, NEW DELHI. BY ORDER ASSISTANT REGISTRAR, ITAT. I.T.A. NO.762/DEL./2005 (A.Y. : 1994-95) 3