DCIT, Yamunanagar V. Kunal Calcium Limited, Yamunanagar

ITA 907/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7565 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 28-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

, , ' IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJ AY GARG, JUDICIAL MEMBER ./ ITA NOS. 907 & 908/CHD/2018 ! / ASSESSMENT YEARS : 2005-06 & 2006-07 THE DCIT, YAMUNANAGAR CIRCLE, YAMUNANAGAR VS. '# M/S KUNAL CALCIUM LTD., 17-18F, DAV MARKET, YAMUNANAGAR PAN NO. AABCK4507G $%/ APPELLANT '( ) * /ASSESSEE BY : SHRI ROHIT GOEL, CA ) * / REVENUE BY : SH. RAJESH KUMAR + , ) (-. /DATE OF HEARING : 24.04.2019 /0! ) (-. / DATE OF PRONOUNCEMENT : .04.2019 / ORDER PER N.K. SAINI, VICE PRESIDENT: THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AG AINST THE COMMON ORDER DATED 7.5.2018 OF CIT(A), PANCHKULA. 2. SINCE THE ISSUE INVOLVED IS COMMON AND APPEALS WERE HEARD TOGETHER SO THESE ARE DISPOSED OFF BY THIS CONSOLIDATED ORDE R FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE COMMON ISSUE INVOLVED IN BOTH THE APPEALS RELATES TO THE DELETION OF PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 4. DURING THE COURSE OF HEARING, LD. COUNSEL FOR T HE ASSESSEE AT THE VERY OUTSET STATED THAT THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE ITAT VIDE ORDER ITA NOS. 907 & 908-CHD/2018 M./S KUNAL CALCIUM LIMITED, YAMUNANAGAR 2 DATED 6.2.2018 IN ITA NOS. 46 & 47/CHD/2015 FOR THE ASSESSMENT YEAR 2005-06 & 2006-07 RESPECTIVELY. COPY OF THE SAID L ETTER WAS FURNISHED WHICH IS PLACED ON RECORD. IT WAS POINTED OUT THA T THE LD. CIT(A) ALSO DELETED THE IMPUGNED PENALTIES FOR THIS REASON THAT THE QUANTUM ADDITIONS HAD BEEN DELETED BY THE ITAT. 5. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR ALTHOUG H SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTR OVERT THE AFORESAID FACTUAL POSITION NARRATED BY THE LD. COUNSEL FOR TH E ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DELETED THE IMPUGNED ADDITIONS LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) BY OBSERVING IN PARA 5 OF THE IMPUGNED OR DER AS UNDER:- 5. I HAVE CAREFULLY CONSIDERED ARGUMENT OF THE COUNSEL FOR THE APPELLANT AND HAVE ALSO PERUSED THE ORDER OF THE HON'BLE ITAT. THE HON'BLE ITAT, CHANDIGARH IN ITA NO. 46 & 47/C/2015 VIDE ITS ORDER DATED 6.2.2018 IN THE APPELLANTS OWN CASE FOR THE ASSESSMENT YEAR 2005-06 & 2006-07 ALLOWED THE APPELLANTS APPEAL. SINCE THE QUANTUM ADDITIONS HAV E BEEN DELETED BY THE ITAT, THE PENALTY LEVIED AGAINS T THE SAME HAS NO LEGS TO STAND AND IS ACCORDINGLY ORDERE D TO BE DELETED FOR BOTH THE YEARS A.Y. 2005-06 AND A.Y. 2006-07. 7. IT IS WELL SETTLED THAT NO PENALTY U/S 271(1)(C) OF THE ACT CAN BE LEVIED WHEN THE ADDITIONS ON THE BASIS OF WHICH SAI D PENALTY IS LEVIED, HAS BEEN DIRECTED TO BE DELETED. IN THE PRESENT CASE, I T IS NOTICED THAT THIS BENCH OF THE TRIBUNAL VIDE ORDER DATED 6.2.2018 I N ITA NOS. 46 & 47/CHD/2015 FOR THE ASSESSMENT YEARS 2005-06 AND 2 006-07 RESPECTIVELY DELETED THE ADDITIONS ON THE BASIS OF WHICH THE ASS ESSING OFFICER LEVIED THE IMPUGNED PENALTIES U/S 271(1)(C) OF THE ACT. ITA NOS. 907 & 908-CHD/2018 M./S KUNAL CALCIUM LIMITED, YAMUNANAGAR 3 8. ON A SIMILAR ISSUE, THE HON'BLE SUPREME COURT IN THE CASE OF K. C. BUILDERS & OTHERS VS ACIT (2004) 265 ITR 562 HAS HELD AS UNDER:- WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. ORDINARILY, PENALTY CANN OT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 9. IN THE PRESENT CASE ALSO, THE ADDITION ON THE BA SIS OF WHICH THE IMPUGNED PENALTY U/S 271(1)(C) OF THE ACT WAS L EVIED BY THE ASSESSING OFFICER HAS BEEN DELETED, THEREFORE, THE IMPUGNED PENALTY WAS NOT LEVIABLE AND THE LD. CIT(A) WAS FUL LY JUSTIFIED IN DELETING THE SAME. WE, THEREFORE, DO NOT SEE ANY ME RIT IN THESE APPEALS OF THE DEPARTMENT. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 24/04/2019) SD/- SD/- . ! (SANJAY GARG ) (N.K. SAIN I) ' #/ JUDICIAL MEMBER %&' / VICE PRESIDENT DATED : . 24. 04.2019 .. 1 ) 2(34 54!( / COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. 26$% / THE RESPONDENT 3. + 7( / CIT 4. + 7( ( )/ THE CIT(A) 5. 48 2(9 , - 9 , :;<= / DR, ITAT, CHANDIGARH 6. < >, / GUARD FILE 1 + / BY ORDER, ? / ASSISTANT REGISTRAR