CIT, Meerut V. Rajeev Kumar Mann, Meerut

MA 454/DEL/2016

AI Insights

The case involves a Miscellaneous Application (MA No.454/Del/2016) filed by the Revenue against Rajeev Kumar Mann concerning the cancellation of a penalty order under section 271(1)(c) of the Income Tax Act, 1961. The Revenue contended that the Tribunal erred in relying on a purportedly fictitious order under section 263 of the Act, which the assessee had produced. The Tribunal had previously deleted the penalty based on this order. The Revenue argued that the actual order was different and had not been considered. However, the Tribunal found that the order produced by the assessee was indeed the correct one, as it was served by the Department and was part of the official assessment folder.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130837 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 4 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 20-04-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2016
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Initiation of penalty proceedings; Set aside
• Section: 27; 263

Judgement Text

Page 1 of 6 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘D’: NEW DELHI BEFORE, DR. B. R. R. KUMAR, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER MA No.454/Del/2016 (Arising out of ITA No.6192/Del/2013) ASSESSMENT YEAR 2008-09 CIT, Circle-2 Meerut Vs. Rajeev Kumar Mann C/o C. L. Gupta & Asso. Pvt. Ltd. 115-Ghapple Street, Meerut PAN-AIBPM 3883G (Appellant) (Respondent) Appellant by Mr. Rohit Aggarwal, CA Respondent by Mr. Om Prakash, Sr. DR Date of Hearing 21/04/2023 Date of Pronouncement 28/04/2023 ORDER PER YOGESH KUMAR U.S., JM: The present Miscellaneous Application (‘MA’, for short) filed by the Revenue on following grounds:- “1. Whether in the facts and circumstances of the case, the Ld. ITAT was justified in cancelling the penalty order dated 27/09/2013 u/s 271(l)(c) of the I.T. Act, 1961, since it relied upon the Order produced by the aseessee, which,. is not valid, wherein all the issues have been set aside to the file of the A.O. Rather, in the Order dated 18/3/2013 passed u/s 263 by the Commissioner of Income Tax, Meerut, additions M.A No.454/Del/2016 CIT vs. Rajeev Kumar Mann Page 2 of 6 have been made in respect of two issues and only one issue has been set aside to the file of the Assessing Officer. 2. Whether in the facts and circumstances of the case, the Ld. ITAT has erred in facts and law in holding that the action of the Commissioner of Income Tax, in visiting the assessee with the penalty, as pre-mature since additions in respect of 2 issues have already been made by virtue of Order u/s 263 and once the quantum of addition has been stipulated, the act of imposition of penalty u/s 271(l)(c) is valid. 3. Whether in the facts and circumstances of the case, the Ld. ITAT has erred in facts in relying upon the Order under Section 263 produced by the assessee and holding the penalty order of the Commissioner of Income Tax, Meerut, as premature since it had been made crystal clear in the penalty order that the submission of the assessee for keeping the penalty proceedings in abeyance, as directions had been issued to the Assessing Officer-vide Order dated 18/03/2013 u/s 263 to frame fresh assessment order, was non- convincing as the assessment order passed by the Assessing Officer had been particularly set aside on 1 issue while additions, in respect of 2 issues had been made with initiation of penalty proceedings u/s 27 l(l)(c) of the I.T. Act. 4. That the appellant craves leave to add, modify and/or delete any ground(s) of appeal.” 2. It is the case of the Revenue that the Tribunal has committed an error in relying on the order passed u/s 263 of the Act produced by the assessee wherein the said order is fictitious and the actual order passed u/s 263 of the Act has not been produced M.A No.454/Del/2016 CIT vs. Rajeev Kumar Mann Page 3 of 6 by the assessee before the Tribunal. Therefore, the Tribunal has committed an error in deciding the ITA No. 6192/Del/2013, thus, the M.A requires to be allowed by restoring the Appeal. 3. It is the case of the assessee is that the order passed u/s 263 of the Act which has been served on the assessee which has been produced by the assessee before the Tribunal in ITA No. 6192/Del/2013, during appeal proceedings before the Tribunal, no such objection regarding production ‘fictitious order’ been pointed out by the Revenue. The Tribunal has taken the cognizance of the order produced by the assessee and dealt with the issues involved in ITA No. 6192/Del/2013 regarding imposition of penalty and decided the Appeal on merit. Therefore, now the Department cannot file Miscellaneous Application for recalling the said order. 4. We have heard the parties and perused the material available on record. 5. It is found from the record that the assessee has challenged the order of the CIT in confirming the order passed by the A.O. u/s 271(1)(c) of the Act, wherein the assessee was aggrieved by imposition of penalty of Rs. 45,78,000/-. The order passed u/s M.A No.454/Del/2016 CIT vs. Rajeev Kumar Mann Page 4 of 6 263 of the Act dated 18/03/2013 has been produced by the assessee which has been taken into consideration and allowed the Appeal by deleting the penalty. It is the specific case of the Revenue is that there are two orders have been passed by the PCIT and the order found in the file of the Revenue has not been considered by the Tribunal. In earlier occasion, the Tribunal had directed the Department to file an affidavit regarding passing of two sets of orders. By complying the said order, the ITO, Meerut had filed an affidavit stating that there were two versions of order u/s 263 of the Act having different findings were found placed in the assessment folder with different findings which is an inadvertent error occurred during the proceedings u/s 263 of the Act. The relevant portion of the affidavit is reproduced hereunder:- “ That the deponent affirm and state on oath. That from the perusal of para 4 of letter dated 20.01.2023 received from Sr. D.R. ITAT New Delhi, it is noted that two versions of the order u/s 263 having different findings were found placed in the assessment folder (pages 352-341) and another set of (pages 284-276) with different findings, partially set aside and fully set aside respectively. From the perusal of the case record and the detailed discussion made as above it may be assumed that an inadvertent error might have occurred during the proceedings u/s 263 of the IT Act 1961, which resulted the issue of two separate M.A No.454/Del/2016 CIT vs. Rajeev Kumar Mann Page 5 of 6 orders with two different findings. In the scenario, the mistake appears to be bonafide.” 6. From the above, it is found that the order dated 18/03/2013 produced by the assessee is not a fabricated one, on the other hand, the said order has been served upon the assessee by the Department which is also finding place in the assessment folder along with another order relied by the Department in the present Miscellaneous Application. Considering the fact that the Department has not objected when the assessee produced of the order dated 18/03/2013 passed u/s 263 of the Act in ITA No. 454/Del/2016 and till this day no order of rectification passed to correct the mistakes apparent on record if any committed by PCIT and further considering the fact that the Tribunal has already taken the cognizance of the order passed u/s 263 of the Act produced by the assessee, which is also found place in the assessment folder , now the Department cannot seek for the recalling of the order by way of the present M.A. thus, we find no merit in the grounds of the Miscellaneous Application filed by the Revenue, accordingly, Miscellaneous Application filed by the Revenue is dismissed. M.A No.454/Del/2016 CIT vs. Rajeev Kumar Mann Page 6 of 6 4 7. In the result, this Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on 28th April, 2023 Sd/- Sd/- SdSd/ (Dr. B.R.R. KUMAR) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 28/04/2023 Pk/R.N, Sr. PS Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI