The ITO, Ward-2(3), RAJKOT-GUJARAT V. M/s. Virat Industries, RAJKOT-GUJARAT

MA 2/RJT/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8344 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM. M.A NO. 02/RJT/2012 (ARISING OUT OF ITA NO.300/RJT/2011 AND CO NO.46/RJ T./2011) / ASSESSMENT YEAR 2007-08 I.T. O., WARD-2(3), RAJKOT M/S. VIRAT INDUSTRIES AJI VASAHAT, RAJKOT. PAN: AABFV6286A ITA NO. 300/RJT/2011 / ASSESSMENT YEAR 2007-08 ITO M/S VIRAT INUSTRIES C.O. NO.46/RJT/2011 / ASSESSMENT YEAR 2007-08 M/S. VIRAT INDUSTRIES, (CROSS-OBJECTOR) I.T. O. (RESPONDENT) ) / REVENUE BY SHRI M. K. SINGH, D.R. +) / ASSESSEE BY SHRI D M RINDANI, FCA ) / DATE OF HEARING 23-03-2012. ) /DATE OF PRONOUNCEMENT 30 -04-2012. / / / / ORDER . .. . . . . . / D. K. SRIVASTAVA: THE M.A. FILED BY THE DEPARTMENT READS AS UNDER:- IN THIS CASE, THE DEPARTMENT HAD FILED APPEAL BEFO RE THE HONBLE INCOME-TAX APPELLATE TRIBUNAL, RAJKOT AGAINST THE ORDER OF THE LD. CIT(A)-III, RAJKOT FOR A.Y. 2007-08 AND ALSO THE ASSESSEE HAS FILED CROSS OBJECTION. THE HONOURABLE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BE NCH, RAJKOT VIDE ORDER DTD. 30-09-2011 IN ITA NO.300/RJT/2011 HAS DISMISSE D THE APPEAL OF THE REVENUE AS WELL AS CROSS OBJECTION FILED BY THE ASS ESSEE HOLDING THAT: THE CIT(A) DELETED THE PENALTY ON THE GROUND THAT THE ADDITION ON WHICH THE PENALTY HAS BEEN LEVIED HAS BEEN DELETED IN ORDER DTD. 17/9/2010 PASSED BY THE CIT(A). AS SUCH IN ABSENCE OF THE RE VENUE BRINGING TO OUR NOTICE ANYTHING CONTRARY THAT THE DECISION OF CIT(A ) ON THE QUANTUM APPEAL HAS NOT ATTAINED FINALITY, WE HAVE TO VONVENIENTLY PRESUME THAT THE DECISION OF THE CIT(A) HAS ATTAINED FINALITY. AS A CONSEQUENCE, AS THE QUANTUM ADDITION AGAINSTWHILE THE IMPUGNED PENALTY HAS BEEN LEVIED, STAND DELETED, THE PENALTY HAS NO LEG TO STAND. THEREFORE, WE HOLD THAT THE CI T(A) HAS RIGHTLY DELETED THE PENALTY. WE CONFIRM HIS ORDER. M A 02/2012, ITA 300/2010 & C.O.46-2011 2 IT IS RESPECTFULLY SUBMITTED THAT ON VERIFICATION O F RECORDS IT IS SEEN THAT THE DEPARTMENT HAS FILED APPEAL BEFORE HONBLE ITAT VIDE ITA NO.1346/RJT/2010 DTD. 23/12/2010 ON THE QUANTUM ISS UE AND THE SAME IS PENDING BEFORE THE HONBLE ITAT. PRAYER IN VIEW OF THE ABOVE, IT IS KINDLY REQUESTED TO REC TIFY THE ORDER DTD.30 TH NOVEMBER, 2011 IN ITA NO.330/RJT/2011 U/S.254(2) OF THE I.T. ACT TO THE ABOVE EXTENT ON MERITS. 2. THE SUBMISSIONS MADE BY THE DEPARTMENT ARE FACTU ALLY CORRECT. THE QUANTUM APPEAL FILED BY THE DEPARTMENT WAS PENDING ON THE D ATE ON WHICH THE ORDER WAS PASSED BY THIS TRIBUNAL IN PENALTY APPEAL. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THIS TRIBUNAL ON 30-09-2011 IN ITA NO.300/RJT/20 11 IS HEREBY RECALLED FOR A FRESH DECISION IN THE LIGHT OF THE OUTCOME IN QUANTUM APP EAL FILED BY THE DEPARTMENT BEARING ITA NO.1346/RJT/2010 (A.Y.2007-08). MA FILE D BY THE DEPARTMENT IS ALLOWED ITA NO. 300/RJT/2011 3. THE APPEAL FILED BY THE DEPARTMENT IS DIRECTED A GAINST THE ORDER PASSED BY THE CIT(A) ON 18-05-2001, ON THE FOLLOWING GROUNDS- 1. THE LD. CIT(A)-III, RAJKOT HAS ERRED IN LAW AND ON FACTS IN CANCELING THE PENALTY OF RS.3,22,160/- LEVIED U/S.271(1)(C) OF TH E I.T. ACT. 2. ON THE FACTS OF THE CASE, THE LD. CIT(A)-III, RA JKOT OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A)-III, RAJKOT MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY KINDLY BE RESTORED BACK TO THE EXTENT. 4. WE HAVE HEARD BOTH THE PARTIES. THE QUANTUM APPE AL FILED BY THE DEPARTMENT HAS SINCE BEEN DISPOSED OFF BY THIS TRIBUNAL VIDE I TS ORDER DATED 1.1.2012. WE FIND THAT THE ADDITION ON THE BASIS OF WHICH THE IMPUGNE D PENALTY HAS BEEN LEVIED BY THE AO WAS DELETED BY THE CIT(A), WHICH, ON APPEAL, HAS BEEN CONFIRMED BY THIS TRIBUNAL VIDE ITS ORDER DATED 01-01-2012. IN THIS VIEW OF TH E MATTER, THE VERY BASIS FOR LEVY OF PENALTY DOES NOT SURVIVE. RESULTANTLY, THE APPEAL F ILED BY THE DEPARTMENT IS DISMISSED. C.O.NO.46/RJT/2011 5. THE ASSESSEE HAS FILED THE MEMORANDUM OF CROSS O BJECTIONS ON THE FOLLOWING GROUNDS:- 1. THE LEARNED C.I.T. (APPEALS)-III, RAJKOT HAS RI GHTLY CANCELLED THE PENALTY OF RS.3,22,160/- LEVIED U/S. 271(1)(C) OF THE ACT. M A 02/2012, ITA 300/2010 & C.O.46-2011 3 6. WE HAVE ALREADY CONFIRMED THE ORDER OF THE CIT(A ) BY WHICH HE HAS DELETED THE IMPUGNED PENALTY. IN THIS VIEW OF THE MATTER, T HE MEMORANDUM OF CROSS OBJECTIONS FILED BY THE ASSESSEE HAS BECOME REDUNDA NT. THEREFORE, IT IS DISMISSED. ) 0 30 -04-2012 ) PRONOUNCED ON 30 -04-2012 SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER 0/ ORDER DATE 30 - 04-2012. ) )) ) 34 34 34 34 54 54 54 54 / COPY OF ORDER FORWARDED TO:- 1. 8 / APPELLANT-ITO, WARD-2(3), RAJKOT. 2. 3:8 / RESPONDENT-M/S.VIRAT INDUSTRIES, RAJKOT.. 3. = / CONCERNED CIT-II, RAJKOT. 4. =- / CIT (A)-III, RAJKOT. 5. 4 3, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR/ , / ITAT, RAJKOT