ACIT, Meerut V. M/s. Jeet ConstructionCo., Meerut

ITSSA 39/DEL/2012

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7978 (ITAT-DELHI)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 13-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MIJHR A
• Assessee Lawyers: K JAANPATH
• Keywords: Search and seizure
• Section: 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI A.N. PAHUJA ITA NO. 39/DEL/2012 BLOCK PERIOD/ASST. YR: 1997-98 TO 2003-04 ASSISTANT CIT, VS. JEET CONSTRUCTION CO., CIRCLE-2, 314 ARVINDPURI, MEERUT. MEERUT. (PAN: AAAFJ6441J) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI DK MIJHR A, CIT(DR) RESPONDENT BY: SHRI K. JAANPATH , ADV. ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF REVENUE, AGAINST THE ORDER OF LEARNED CIT(APPEALS) DATED 24.05.2012 PASS ED FOR THE BLOCK PERIOD STARTING FROM ASSESSMENT YEAR 1997-98 AND ENDING ON ASSESSMENT YEAR 2003- 04. GROUND NO.1 IS THE SOLITARY SUBSTANTIAL GROUND OF APPEAL. IT READS AS UNDER: 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(APPEALS) WAS JUSTIFIED IN LAW IN DELETING THE P ENALTY IMPOSED BY THE A.O. FOR RS.3,05,58,009 U/S. 158BFA(2) OF THE I NCOME-TAX ACT, 1961 IGNORING THAT MATTER RELATED TO RELEVANT ADDIT IONS MADE DURING ASSESSMENT FOR THE SAME BLOCK A.YS. 1997-98 TO 2003 -04 WAS SUBJUDICE BEFORE THE HON'BLE HIGH COURT, ALLAHABAD. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 23.12.2002 ON THE RESIDENTIAL PREMIS ES OF SHRI BALJEET SINGH BAKSHI AND OTHER PARTNERS OF M/S. JEET CONSTRUCTIO COMPANY. INCRIMINATING MATERIAL WERE ALLEGED TO HAVE BEEN FOUND DURING THE COURSE OF SEARCH RELATING TO THE ASSESSEE. PROCEEDINGS UNDER SEC. 15 8BD OF THE ACT WERE INITIATED IN THE CASE OF ASSESSEE AND AN ASSESSMENT ORDER WAS PASSED FOR THE BLOCK PERIOD ON 29.9.2006. THE DISPUTE TRAVELED UP TO THE ITAT AND THE ITAT VIDE ORDER DATED 11.11.2008 REMITTED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. A FRESH ASSESSMENT ORDER HAS BEE N PASSED ON 31.12.2009 UNDER SEC. 158BD READ WITH SEC. 253 OF THE INCOME-T AX ACT, 1961. LEARNED ASSESSING OFFICER HAS DETERMINED THE INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD AT RS.485,04,776. HE INITIATED PENALTY PROCE EDINGS UNDER SEC. 158BFA(2) OF THE ACT. AGAINST THE ASSESSMENT ORDER, THE DISPUTE TRAVELED UP TO THE ITAT IN CROSS APPEAL I.E. ITSS A NO. 26/DEL/ 2011, AT THE INSTANCE OF ASSESSEE AND ITSS A NO.28/DEL/2011, I.E. AN APPEAL AT THE INSTANCE OF THE REVENUE. THE ITAT HAS ALLOWED THE APPEAL OF THE ASS ESSEE VIDE ORDER DATED 31 ST OCTOBER, 2011 AND DELETED THE ADDITION, CONSEQUENT LY THE APPEAL OF REVENUE WAS DISMISSED. 3. LEARNED ASSESSING OFFICER HAS PASSED AN ORDER U NDER SEC. 158BFA(2) ON 26.6.2011. HE IMPOSED A PENALTY OF RS.305,58,009 . LEARNED FIRST 3 APPELLATE AUTHORITY HAS DELETED THE PENALTY BY OBSE RVING THAT VERY BASIS OF THE PENALTY, NO MORE SURVIVE, HENCE, NO PENALTY IS IMPOSEABLE. 4. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE AT T HE VERY OUTSET SUBMITTED THAT IN THE GROUND OF APPEAL, REVENUE HAS PLEADED THAT ADDITION HAS BEEN DELETED BY THE ITAT AND THE MATTER IS SUBJUDIC E BEFORE THE HON'BLE HIGH COURT. HE PLACED ON RECORD COPY OF THE ITATS ORDER AND SUBMITTED THAT IN VIEW OF THIS DEVELOPMENT, APPEAL OF THE REV ENUE IS DE VOID OF ANY MERIT. ON THE OTHER HAND, LEARNED DR WAS UNABLE TO CONTROVERT THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE RECORD CAREFULLY. SUB-SECTION (2) OF SECTION 158BFA OF THE ACT PROVIDES THAT ASSESSING OFFICER OR LEARNED CIT(APPEALS) IN THE CO URSE OF ANY PROCEEDINGS UNDER THIS CHAPTER, MAY DIRECT THAT A PERSON SHALL PAY BY WAY OF A PENALTY A SUM WHICH SHALL NOT BE LESS THEN THE AMOUNT OF TAX LEVIABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SO LEVIABL E IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFI CER. IN VIEW OF THE ITATS ORDER, THERE IS NO UNDISCLOSED INCOME UPON W HICH TAX IS LEVIABLE, THEREFORE, THERE CANNOT BE ANY QUESTION OF IMPOSING PENALTY. LEARNED 4 CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY. IN VI EW OF THE ABOVE, APPEAL OF THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 19.10.20 12 SD/- SD/- ( A.N. PAHUJA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19/10/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR