Shri Kailash Chandra Garg, INDORE V. ACIT Central -2, INDORE

ITA 850/Ind/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2774 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: R S MANDORA
• Section: 143(3)

Judgement Text

[ITA 850/IND/2017] [SHRI KAILASH CHANDRA GARG, INDORE , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.850/IND/2017 ASSESSMENT YEAR: 2005-06 SHRI KAILASH CHAND GARG 87 ASHOK NAGAR, B/H SAPNA SANGEETA CINEMA INDORE / VS. ACIT (CENTRAL)-2 INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. ABKPG9944N APPELLANT BY SHRI R.S. MANDORA, A.R. RESPONDENT BY SHRI K.G. GOYAL, SR. D.R. DATE OF HEARING: 25.02.2019 DATE OF PRONOUNCEMENT: 27.02.2019 / O R D E R PER V. DURGA RAO, J.M: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE CIT(A)-III, INDORE DATED 29.9.2017 FOR THE ASSESSMENT YEAR 2005-06. [ITA 850/IND/2017] [SHRI KAILASH CHANDRA GARG, INDORE 2 2. FACTS ARE IN BRIEF THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 20 05-06 ON 31.10.2005 BY DECLARING TOTAL INCOME OF RS.2,77,21 8/-. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED AND ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 OF TH E INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) ON 28.3.2013 BY ASSESSING TOTAL INCOME OF RS.2,29,07,220 /-. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF THE A.O. ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE HON'BLE IT AT. THE HON'BLE ITAT HAS REMITTED THE MATTER BACK TO THE A .O. AGAIN FOR FRESH ADJUDICATION IN ITA NO.262/IND/2015 FOR THE A.Y. 2005-06 BY ORDER DATED 16.1.2018. SUBSEQUEN TLY, THE A.O. HAS PASSED ASSESSMENT ORDER U/S 143 R.W.S. 147/254 OF THE ACT DATED 20.12.2018. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE BASIS O N WHICH PENALTY WAS LEVIED BY THE ACIT, CIRCLE-2, INDOR E DATED 17.12.2015 HAS BEEN SET ASIDE BY THE HON'BLE IT AT IN [ITA 850/IND/2017] [SHRI KAILASH CHANDRA GARG, INDORE 3 ITA NO.262/IND/2015 FOR THE A.Y. 2005-06 DATED 16.1.2018 AND SUBMITTED THAT PENALTY ORDER CANNOT SURVIVE. 3. ON THE OTHER HAND, THE LD. D.R. HAS NOT RAISED ANY OBJECTION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE PENALTY HAS BEEN LEVIED IN THIS CASE BASED ON THE ASSESSMENT ORDER DATED 28.3.20 13. THE VERY SAME ORDER HAS BEEN SET ASIDE BY THE HON'BLE ITAT IN ITA NO.262/IND/2015 FOR THE A.Y. 2005-06 DATED 16.1.2018. SUBSEQUENTLY, ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147/254 OF THE ACT DATED 20.12.2018. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS ORIGINALLY ACCEPTED BY THE A.O. WITHOUT MAKING ANY ADDITION. THE PRESENT PENALTY ORDER CONFIRMED BY THE LD. CIT(A) WA S [ITA 850/IND/2017] [SHRI KAILASH CHANDRA GARG, INDORE 4 BASED ON THE ORIGINAL ASSESSMENT ORDER DATED 28.3.2013. ONCE THAT ORDER HAS BEEN ALREADY SET ASIDE BY THE HON'BL E ITAT, PENALTY ORDER CANNOT SURVIVE. EVEN OTHERWISE, CONSEQUENT TO THE ORDER PASSED BY THE HON'BLE ITAT, T HE A.O. PASSED THE ASSESSMENT ORDER AND NO ADDITION IS MAD E. THEREFORE, THE PENALTY ORDER PASSED BY THE A.O. CONFI RMED BY THE LD. CIT(A) CANNOT SURVIVE. IN VIEW OF THE ABO VE, THE APPEAL FILED BY THE ASSESSEE HAS TO BE ALLOWED. ACCORDI NGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27 . 02.2019. SD/- (MANISH BORAD) SD/- (V. DURGA RAO) A CCOUNTANT MEMBER JUD ICIALMEMBER INDORE; DATED : 27/02/2019 VG/SPS [ITA 850/IND/2017] [SHRI KAILASH CHANDRA GARG, INDORE 5 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE