M/s Bimel Resins Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 98/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7988 (ITAT-DELHI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 06-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APPLICATION REJECTED
• Assessee Lawyers: RISHI PREMWANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-98/DEL/ 2016 (ASSESSMENT YEAR-2004-05) BIMEL RESINS PVT.LTD., 31, GUJANWALA TOWN, PART-II, G.T.KARNAL ROAD, DELHI-110033. PAN-AAACB1168M (APPELLANT) VS ITO, WARD-3(1), NEW DELHI (RESPONDENT) A SSESSEE BY SH. RISHI PREMWANI, CA R EVENUE BY APPLICATION REJECTED ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 18/09/2015 OF CIT(A)-2, NEW DELH I PERTAINING TO 2004 05 ASSESSMENT YEAR WHEREIN THE ASSESSEE HAS ASSAILED T HE FINDING OF THE CIT(A) IN UPHOLDING THE PENALTY IMPOSED BY THE ASSESSING OFFI CER. 2. ON BEHALF OF THE REVENUE, AN ADJOURNMENT HAS BEE N MOVED STATING THAT LD. SR. DR IS ON LEAVE. ON GOING THROUGH THE SAME, IT IS SEEN THAT APART FROM CARRYING SOME INDECIPHERABLE INITIAL IT NEITHER NAM ES THE PERSON WHO HAS MOVED IT NOR DOES IT REFLECT THE DESIGNATION OF THE PERSO N PETITIONING FOR TIME. NO ONE WAS PRESENT IN SUPPORT OF THE PETITION MOVED. THE MOVING OF THE PETITION IN SUCH A CASUAL WAY IS NOT APPROPRIATE. THE APPLICATION A CCORDINGLY WAS REJECTED AND IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRES ENT APPEAL EX-PARTE QUA THE REVENUE RESPONDENT ON MERITS. BEFORE WE ADDRESS TH E ISSUES IT MAY ALSO BE DATE OF HEARING 14.03.2016 DATE OF PRONOUNCEMENT 06.05.2016 I.T.A .NO.-98/DEL/2016 PAGE 2 OF 3 PERTINENT TO NOTE THAT THE REGISTRY HAS POINTED OUT A DEFECT IN REGARD TO SHORTAGE IN THE TRIBUNALS FEE ON 04/02/2016 SUBSEQUENTLY BY ORDER SHEET ENTRY DATED 23/05/2016 THE REGISTRY HAS NOTED THAT THE DEFECT H AS BEEN REMOVED. 2.1. THE LD. AR SUBMITTED THAT THE ITAT RESTORED TH E QUANTUM APPEAL TO THE AO. ACCORDINGLY THE PENALTY ORDER BASED ON THE ORD ER WHICH NO LONGER EXISTED IN THE EYES OF LAW AS A RESULT OF THIS SET ASIDE CANNO T SURVIVE. INVITING ATTENTION TO THE PAPER BOOK PAGE NO. 37 TO 39 IT WAS SUBMITTED T HAT THE ADDITIONS UPHELD BY THE CIT(A) CHALLENGED BY THE ASSESSEE IN APPEAL BEF ORE THE ITAT HAVE BEEN SET ASIDE BACK TO THE FILE OF THE ASSESSING OFFICER VID E ORDER DATED 02/09/2015 IN ITA 791/DEL/2013. ACCORDINGLY IN THE CIRCUMSTANCES IT W AS HIS SUBMISSION THAT SINCE THE VERY BASIS OF THE PENALTY ORDER HAS BEEN RESTORED THE OCCASION FOR THE PENALTY TO SURVIVE DOES NOT ARISE. IT WAS HIS SUBMI SSION THAT WHETHER THE PENALTY IS TO BE IMPOSED OR NOT AT ALL IS A DECISION WHICH CAN BE TAKEN ONLY BY THE ASSESSING OFFICER AND THAT TOO AT THE STAGE WHEN TH E ISSUE IS DECIDED IN THE QUANTUM PROCEEDINGS BY HIM. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE PENALTY ORDER CANNOT SURVIVE. 3. HAVING HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE APPEAL OF THE ASSESSEE IS TO BE ALLOWED. WHETHE R THE INGREDIENTS OF THE PENALTY UNDER SECTION 271(1)(C) ARE FULFILLED OR NOT IS A V IEW WHICH HAS TO BE FORMED BY THE AO. SINCE THE VERY BASIS OF THE SAME I.E. THE QUANT UM ORDER ITSELF HAS BEEN RESTORED TO THE ASSESSING OFFICER THE OCCASION TO L EVY PENALTY OR UPHOLD THE PENALTY IMPOSED DOES NOT ARISE. IN THE ABSENCE OF A NY REPRESENTATION ON BEHALF OF I.T.A .NO.-98/DEL/2016 PAGE 3 OF 3 THE REVENUE TO THE CONTRARY AND BEING SATISFIED BY THE REASONS AND EXPLANATION OFFERED BY THE ASSESSEE IN THE FACTS OF THE PRESENT CASE THE PENALTY ORDER BECOMES INFRUCTUOUS AT THIS STAGE. THE IMPUGNED ORDER IS S ET ASIDE AND THE APPEAL OF THE ASSESSEE CONSEQUENTLY IS ALLOWED. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 O F MAY, 2016. SD/- (DIVA SINGH) JUD ICIAL MEMBER DATED:06/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIST ANT REGISTRAR ITAT NEW DELHI