DCIT, Central Circle- 29, New Delhi V. Omaxe Ltd., New Delhi

ITA 931/DEL/2018

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9246 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘E’ : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER and SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA No.931/Del./2018 (ASSESSMENT YEAR : 2007-08) DCIT, Central Circle 29, vs. M/s. Omaxe Limited, New Delhi. 7, LSC, Kalkaji, New Delhi – 110 019. (PAN : AAACO0171H) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Ashwani Kumar, CA REVENUE BY : Ms. Sarita Kumari, CIT DR Date of Hearing : 02.11.2021 Date of Order : 02.11.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, DCIT, Central Circle 29, New Delhi (hereinafter referred to as ‘the Revenue’) by filing the present appeal sought to set aside the impugned order dated 09.11.2017 passed by the Commissioner of Income-tax (Appeals)-30, New Delhi dismissing the penalty order dated 31.03.2016 passed u/s 271(1)(c) of the Income-tax Act, 1961 (for short ‘the Act’), qua the assessment year 2007-08 on the ground that :- ITA No.931/Del./2018 2 “Whether on facts and in the circumstances of the case, the Ld. CIT (A) has erred in law and on facts in deleting the penalty of Rs.1,34,64,000/- levied by the AO.” 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : On the basis of assessment completed under section 143(3) of the Act, penalty proceedings were initiated u/s 271(1)(c) of the Act for concealing the particulars of income. Declining the contentions raised by the assessee, AO proceeded to levy the penalty of Rs.1,34,64,000/- @ 100% of the tax sought to be evaded. 3. Assessee carried the matter by way of appeal before the ld. CIT (A) who has deleted the penalty by allowing the appeal. Feeling aggrieved, the Revenue has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 5. At the very outset, it is brought to our notice by the ld. AR for the assessee that additions made in the quantum proceedings have since been deleted by the Tribunal in assessee’s own case in ITA No.4125/Del/2014 for AY 2007-08 vide order dated 18.09.2017 and as such, penalty levied is not sustainable and brought on record the copy of the order of the Tribunal dated 18.09.2017 (supra). Ld. DR for the Revenue did not controvert this factual position. ITA No.931/Del./2018 3 6. Undisputedly, coordinate Bench of the Tribunal vide order dated 16.06.2017 (supra) deleted the additions. In these circumstances, the penalty levied by the AO is not sustainable in view of the law laid down by the Hon’ble Apex Court in case cited as K.C. Builders & Anr vs. ACIT – 265 ITR 562 (SC) because “when the addition made in the assessment order on the basis of which penalty for concealment is levied have been deleted there remains no basis at all for levying the penalty for concealment and in such case, no penalty can survive and the penalty is liable to be cancelled.” So, in view of the matter, the impugned order passed by the ld. CIT (A) is confirmed and the appeal filed by the Revenue is hereby dismissed. Order pronounced in open court on this 2 nd day of November, 2021 after the conclusion of the hearing. Sd/- sd/- (ANIL CHATURVEDI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated the 2 nd day of November, 2021 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-30, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.