DCIT, Central Circle- 32, New Delhi V. Appolo Traexim Pvt. Ltd., New Delhi

ITA 7863/DEL/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9553 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Search and seizure
• Section: 271(1)(c); 143(3); 153A; 68

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI BHAVNESH SAINI , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 7863/DEL/2017 (ASSESSMENT YEAR: 2004 - 05 ) DCIT, CENTRAL CIRCLE - 32, NEW DELHI VS. APPOLO TRAEXIM PVT. LTD., A - 20, NARAINA INDUSTRIAL AREA, PHASE - 1, NARAINA, NEW DELHI PAN: AAECA0010D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI PRAKASH DUBEY, SR. DR ASSESSEE BY: NONE DATE OF HEARING 04/01/2021 DATE OF PRONOUNCEMENT 0 4 / 01 / 2021 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS APPEAL IS FILED BY THE LD DCIT, CENTRAL CIRCLE - 32, NEW DELHI [ LD AO] FOR ASSESSMENT YEAR 2004 - 05 WHEREIN, THE LD CIT(A) HAS DELETED THE PENALTY OF RS. 53 , 81 , 250/ - IMPOSED U/S 271(1)(C) OF THE ACT BY THE LD AO FOR AN ADDITION OF RS. 1.5 CRORES . THE LD CIT (A) DELETED PENALTY FOR THE REASON THAT ADDITION MADE BY THE LD AO O F RS. 1,50,00,000/ - HAS BEEN DELETED BY THE COORDINATE BENCH . LD AO S GRIEVANCE IS THAT THE ABOVE ORDER OF THE COORDINATE BENCH HAS NOT BEEN ACCEPTED BY THE REVENUE AND FURTHER APPEAL HAS BEEN FILED BEFORE THE HONBLE DELHI HIGH COURT. HENCE, THIS APPE AL. 2. THE BRIEF FACT OF THE CASE SHOWS THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 19.01.2009. NOTICES U/S 153A OF THE ACT WAS ISSUED ON 02.06.2010. THE ASSESSEE FILED ITS RETURN OF INCOME DECLAR ING LOSS OF RS. 1 , 08 , 448/ - ON 09.07.2010. TH E ASSESSMENT U/S 153A READ WITH SECTION 143(3) OF THE ACT WAS PASSED ON 31.12.2010 WHEREIN, AN ADDITION OF RS. 1,50,00,000/ - WAS MADE IN THE HANDS OF THE ASSESSEE UNDER SECTION 68 OF PAGE | 2 THE ACT WITH RESPECT TO ALLOTMENT OF SHARES TO 21 COMPANIES WHERE THE ASS ESSEE FAILED TO PRODUCE THE DIRECTORS OF THOSE SHARE APPLICANTS COMPANIES. FURTHER , ADDITION OF RS. 1,60,366/ - WAS ALSO MADE ON ACCOUNT OF DISALLOWANCE OF EXPENDITURE. THIS ASSESSMENT ORDER ASSESSED THE TOTAL INCOME OF THE ASSESSEE OF RS. 1,50,51 , 918/ - . TH E LD AO FURTHER INITIATED THE PENALTY PROCEEDINGS U/S 271(1) ( C ) OF THE ACT FOR CONCEALMENT OF INCOME WITH RESPECT TO BOGUS SHARE APPLICA TION MONEY. 3. ON APPEAL BEFORE THE LD CIT(A) AS PER ORDER DATED 02.07.2013 THIS ADDITION WAS CONFIRMED. 4. HOWEVER, ON FILING OF THE APPEAL BEFORE THE COORDINATE BENCH THE ABOVE ADDITION WAS DELETED BASED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN CIT VS. KABUL CHAWLA 380 ITR 573 AND PR. CIT VS. MEET A G UTGUTTIA 152 DTR 153. 5. HOWEVER, AS PER ORDER DATED 28.03.2005 BASED ON THE ORDER OF THE LD CIT(A) CONFIRMING THE ABOVE ADDITION, THE LD AO LEVIED A PENALTY OF RS. 53 , 81 , 250/ - U/S 271(1)(C) FOR THE CONCEALMENT OF INCOME. 6. THE ASSESSEE CHALLENGED THE SAME BEFORE THE LD CIT(A), WHO PASSED AN ORDER ON 24.10.2017 DELETIN G THE ABOVE PENALTY FOR THE REASON THAT THE ADDITION HAS BEEN KNOCKED OFF BY THE COORDINATE BENCH AND THEREFORE, THE PENALTY HAS NO LAGS TO STAND. 7. DESPITE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE, THE ISSUE IS DECIDED ON MERITS OF THE CASE. 8. THE LD DR SUBMITTED THAT REVENUE HAS NOT ACCEPTED THE ABOVE DECISION OF THE COORDINATE BENCH DELETING ABOVE ADDITION AND HAS PREFERRED APPEAL BEFORE THE HONBLE DELHI HIGH COURT. HOWEVER, NECESSARY DETAILS ABOUT THE ADMISSION OF THE ABOVE APPEAL OR ITS STATUS WERE NOT PROVIDED. 9. ON CAREFULLY CONSIDERATION OF THE FACTS WHEN THE ADDITION HAS ALREADY BEEN KNOCKED OFF BY THE COORDINATE BENCH REALLY THE PENALTY HAS NO LAGS TO STAND UPON. WHEN THE ADDITION S ITSELF ARE DELETED BASED ON WHICH PENALTY IS LEVIED , NATURALLY , SUCH PENALTY ALSO DOES NOT SUSTAIN. REVENUE HAS STATED THAT IT HAS FILED APPEAL BEFORE HONBLE DELHI HIGH COURT, THEREFORE, IN CASE THE DECISION OF THE COORDINATE BENCH IS REVERSED IN THE CASE OF THE PAGE | 3 ASSESSEE ON THE QUANTUM ADDITION, PENALTY MAY BE REVISED IN VIEW OF THE PROVISION IN ACCORDANCE WITH THE LAW. 10. IN THE RESULT, THE SOLITARY GROUND OF APPEAL AND THE APPEAL OF THE LD AO IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 / 01 / 2021 . - SD/ - - SD/ - ( BHAVNESH SAINI ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04 / 01 / 2021 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI