The JCIT(OSD), Circle-1(1)(2), Ahmedabad V. D.B. Corporation Ltd., Ahmedabad

MA 108/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2250 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 254(2)

Judgement Text

MA NO.108/AHD/2018 (IN ITA NO.19/AHD/2015) ASSESSMENT YEAR: 2008-09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR VICE PRESIDENT AND RAJPAL YADA V JUDICIAL MEMBER] M.A. NO.108/AHD/2018 (IN ITA NO.19/AHD/2015) ASSESSMENT YEAR: 2008-09 JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE 1(1)(2), AHMEDABAD. .. APPLICANT VS. D.B. CORPORATION LIMITED, .......... RESPONDENT 280, SARKHEJ GANDHINAGAR HIGHWAY, NEAR YMCA CLUB, MAKARBA, AHMEDABAD. [PAN: AACCM 5772 G] APPEARANCES BY S.K. DEV FOR THE APPLICANT SHALIBHADRA SHAH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 18.01.2019 DATE OF PRONOUNCEMENT : 12.04.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SING OFFICER APPLICANT HAS POINTED OUT FOLLOWING ERROR IN THE ORDER DATED 25.0 9.2017 PASSED BY US : 2. ON PERUSAL OF THE ORDER IT IS SEEN THAT THE HON 'BLE ITAT HAS ERRED IN DECIDING THE GROUNDS RAISED BY THE REVENUE. IN THIS CASE THE ISSUE OF CONTENTION IS THAT OF PENALTY U/S. 271(1)(C) OF THE ACT ON THE QUANTUM ADDITION OF RS.1,23,72,972/-. 3. THE HON'BLE ITAT WHILE DISPOSING ITS ORDER IN F AVOUR OF THE ASSESSEE (AS PER PARA 7 ON PAGE 3 OF 3) HELD AS MENTIONED HE REUNDER: 'WHEN THE QUANTUM ADDITION ITSELF HAS BEEN DELETED BY THE ASSESSING OFFICER WHILE GIVING EFFECT TO ITAT'S ORDER, THE PE NALTY IMPOSED ON SUCH ADDITION DOES NOT SURVIVE.' 4. IN THIS BEHALF, ATTENTION IS INVITED TO THE DIR ECTIONS OF HON'BLE ITAT IN ITA NO.2373/AHD/2011 DATED 23.03.2017 IN THE ASSESS EE'S OWN APPEAL ON THE MA NO.108/AHD/2018 (IN ITA NO.19/AHD/2015) ASSESSMENT YEAR: 2008-09 PAGE 2 OF 3 QUANTUM ISSUE ON THE THIRD SUBSTANTIVE GROUND CHALL ENGED BY THE ASSESSEE ON DISALLOWANCE OF STAMP DUTY CHARGES OF RS.1,23,72,97 2/- IN ITA NO. 2373/AHD/2011 DATED 23.03.2017, THE HON'BLE ITAT VI DE PARA NO. 5 ON PAGE-3 HAS REMITTED THIS ISSUE BACK TO THE ASSESSING OFFIC ER FOR A DECISION AFRESH AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSE E. 5. RESPECTFULLY, FOLLOWING THE DIRECTIONS OF HON'B LE ITAT IN ITA NO. 2373/AHD/2011 DATED 23.03.2017, THE ASSESSING OFFIC ER, VIDE APPEAL EFFECT DATED 17.07.2017 GRANTED TEMPORARY RELIEF ON THE IS SUE OF STAMP DUTY CHARGES TILL THE MATTER IS DECIDED AFRESH. 6. IT IS PERTINENT TO MENTION HERE THAT IN THE ORD ER GIVING EFFECT TO ORDER OF HON'BLE ITAT, IT WAS CLEARLY MENTIONED AS UNDER: '(2) ADDITION OF STAMP DUTY CHARGES SET ASIDE TO FI LE OF A.O.' THE NOTING MENTIONED IN THE ORDER OF APPEAL EFFECT CLEARLY INDICATES THAT THE MATTER WILL BE ADJUDICATED AFRESH. FURTHERMORE, A NOTICE U/S.142(1) R.W.S. 254 OF THE ACT DATED 11.12.2017 HAS ALSO BEEN ISSUE D IN THIS CASE WHICH WAS DULY SERVED UPON THE ASSESSEE. 7. FROM THE ABOVE IT IS SEEN THAT THE AO HAS NOT D ELETED THE ADDITION WHILE GIVING THE APPEAL EFFECT ORDER AND HAS MERELY FOLLOWED THE DIRECTION OF THE HON'BLE TRIBUNAL GIVEN IN ITA NO.2373/AHD/2011 DATED 23.03.2017 OF SETTING ASIDE THE ISSUE FOR FRESH VERIFICATION. THE REFORE, THE HON'BLE TRIBUNAL HAS ERRED IN GIVING THE FINDING THAT THE QUANTUM HA S BEEN DELETED BY THE AO. SINCE THE MISTAKE IS APPARENT FROM THE RECORDS, IT IS REQUESTED THAT THE HON'BLE TRIBUNAL MAY KINDLY RECTIFY THE MISTAKE AND PASS NECESSARY ORDER ACCORDINGLY. 2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 3. ON A PERUSAL OF APPEAL EFFECT ORDER DATED 17.07. 2017, WE FIND THAT THE ASSESSING OFFICER HAS DELETED THE ADDITION OF RS.1, 23,72,972/- ON ACCOUNT OF STAMP DUTY CHARGES SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. THE ADDITION WAS THUS DELETED, AND THERE IS NO DISPUTE ON THAT ASPECT, TH OUGH THE MATTER WAS DECIDED AFRESH ON MERITS. 4. IN SUCH CIRCUMSTANCES, IN OUR CONSIDERED VIEW, T HE LIBERTY TO TAKE A CALL ON WHETHER OR NOT, IN THE LIGHT OF ADJUDICATION IN THE REMANDED PROCEEDINGS, IT WAS A FIT CASE FOR IMPOSITION OF PENALTY, AND TO IMPOSE THE P ENALTY, IF NECESSARY. THE DELETION OF PENALTY BY US, THEREFORE, DOE NOT PREJUDICE THE LEGITIMATE INTERESTS OF THE MA NO.108/AHD/2018 (IN ITA NO.19/AHD/2015) ASSESSMENT YEAR: 2008-09 PAGE 3 OF 3 ASSESSING OFFICER. IN ANY CASE, ONCE AN ADDITION I S SET ASIDE AND THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR F RESH ADJUDICATION, THE VERY FOUNDATION OF RELATED PENALTY UNDER SECTION 271(1)(C) CEASES T O HOLD GOOD IN LAW. IN THE LIGHT OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE SEE NO REASONS TO INTERFERE IN THE MATER. THE ORDER DOES NOT SUFFER FROM ANY MISTAKE, MUCH LESS A MISTAKE APPARENT ON RECORD WHICH CAN BE RECTIFIED U NDER SECTION 254(2) OF THE ACT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 12 TH DAY OF APRIL, 2019. SD/- SD/- RAJPAL YADAV PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, DATED THE 12 TH DAY OF APRIL, 2019 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD