ACIT, New Delhi v. M/s. Modi Spinning And Weaving Mills Co. Ltd.,, Ghaziabad

ITA 1077/DEL/2010 | 1978-1979
Pronouncement Date: 13-05-2010 | Result: Dismissed

Appeal Details

RSA Number 107720114 RSA 2010
Bench Delhi
Appeal Number ITA 1077/DEL/2010
Duration Of Justice 2 month(s) 2 day(s)
Appellant ACIT, New Delhi
Respondent M/s. Modi Spinning And Weaving Mills Co. Ltd.,, Ghaziabad
Appeal Type Income Tax Appeal
Pronouncement Date 13-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 13-05-2010
Assessment Year 1978-1979
Appeal Filed On 11-03-2010
Judgment Text
ITA NO. 1077/DEL/2010 A.Y. 1978-79 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 1077/DEL/2010 A.Y. : 1978-79 ACIT CIRCLE-5(1) VS. M/S MODI SPINNING & WEAVI NG R.NO. 409-A CR BLDG. MILLS CO. LTD. I.P. ESTATE NEW DELHI MODINAGAR GHAZIABAD UP (PAN:AAACM2067L) [APPELLANT] (RESPONDENT) ASSESSEE BY : SH. ROHIT JAIN A.R. DEPARTMENT BY : SH. G.S. SAHOTA SR. D.R. PER SHAMIM YAHYA: AM THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 31.12.20 09 PERTAINING TO ASSESSMENT YEAR 1978-79. 2. THE ISSUES RAISED READ AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN D ELETING THE PENALTY OF RS. 29 85 110/- LEVIED BY THE ASSESSING OFFICER U/ S 271(1)(C) OF THE ACT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IGNORE D THE FACT THAT THE PENALTY LEVIED ON 24.11.1986 IS LIMITED ONLY TO THE ISSUE NOT PRESSED BY THE ASSESSEE BEFORE THE TRIBUNAL I.E. PAYMENT OF RS. 1 22 500/- TO M/S KRIPPS ASSOCIATE. ITA NO. 1077/DEL/2010 A.Y. 1978-79 2 3. THE BRIEF FACTS OF THE CASE LEADING TO THE LEVY OF PENALTY AS UNDER:- THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 31.7.1978 DECLARING A TAXAB LE INCOME OF RS. 86 91 786/-. THEREAFTER AFTER DETAILED SCRUTIN Y THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 144B OF THE ACT AT A TOTAL INCOME OF RS. 1 76 31 660/-. BEING AGGRIEVED BY THE ACTION OF THE ASSESSING OFFICER THE ASSESSEE COMPANY PREFERRED AN APPEAL BEFORE T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS DECIDED BY HIM VI DE HIS ORDER DATED 28.04.1983. IN THE SAID ORDER THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED PART RELIEF TO THE ASSESSEE COM PANY AND THEREFORE BOTH THE ASSESSEE AS WELL AS THE REVENUE FILED FURTHER A PPEALS BEFORE THE ITAT. THE ITAT VIDE ITS ORDER DATED 31.3.1986 DISMISSED T HE APPEAL FILED BY THE REVENUE AND ALLOWED FURTHER RELIEF TO THE APPELLAN T ASSESSEE. AFTER GIVING EFFECT TO THE ORDERS OF THE LD. COMMISSIONER OF INC OME TAX (APPEALS) AND THE ITAT THE INCOME OF THE ASSESSEE COMPANY WAS FI NALLY DETERMINED AT RS. 113.75 LAKHS AS AGAINST THE RETURNED INCOME OF RS. 86.92 LAKHS. BEING NOT SATISFIED WITH THE ORDER OF THE ITAT BOTH THE SIDE S FILED REFERENCE APPLICATIONS BEFORE THE HONBLE DELHI HIGH COURT W HICH WERE RETURNED UNANSWERED BY THE HONBLE COURT VIDE ORDER DATED 17 .1.2006. CONSEQUENTLY THE ITAT DELHI PASSED A CONFIRMATOR Y ORDER U/S 260(1) OF THE IT ACT ON 19.8.2008. ON RECEIPT OF THIS CONFIR MATORY ORDER THE LD. ASSESSING OFFICER PASSED THE PENALTY ORDER U/S 271 (1)(C) OF THE ACT ON 31.7.2009 AGAINST WHICH THE ASSESSEE COMPANY APPE ALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ITA NO. 1077/DEL/2010 A.Y. 1978-79 3 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) ASSESSEE POINTED OUT THAT UPON RECEIPT OF ITAT ORDER DATED 31.3.1986 TH E THEN ASSESSING OFFICER HAS ALREADY IMPOSED A PENALTY OF RS. 70 744/- U/S 271(1 )(C) OF THE ACT VIDE HIS ORDER DATED 24.12.1986. HENCE IT WAS CONTENDED THAT THIS PENALTY WAS NOT SUSTAINABLE. IT WAS FURTHER CONTENDED THAT THE SAID PENALTY WAS DELETED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 31.1.1989 WHICH WAS CONFIRMED BY THE TRIBUNAL VIDE ORDERS DATED 31.3.1 993. 5. CONSIDERING THE ABOVE SUBMISSIONS LD. COMMISSIO NER OF INCOME TAX (APPEALS) HELD AS UNDER:- THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT C OMPANY AND DOCUMENTS FILED IN THE COURSE OF APPELLATE PROCEED INGS HAVE BEEN CAREFULLY CONSIDERED. ON CONSIDERATION I FIND THAT THE SUBM ISSIONS MADE ON BEHALF OF THE APPELLANT COMPANY DESERVE TO BE ACCEPTED. A PERUSAL OF DOCUMENTS WHICH INTER-ALIA INCLUDE ORDER U/S 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER ON 15.9.1981 ORDER OF THE LD. C OMMISSIONER OF INCOME TAX (APPEALS) DATED 28.4.1983 ORDER OF THE ITAT D ELHI DATED 31.3.1986 PENALTY ORDER U/S 271(1)(C) DATED 24.11.1986 AND A PPELLATE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE TRIBUN AL IN CONNECTION WITH THE PENALTY ORDER CLEARLY SUPPORTS THE CASE OF THE APPELLANT COMPANY. HOWEVER BEFORE COMING TO ANY FINAL CONCLUSION IT WAS CONSIDERED EXPEDIENT TO CALL FOR THE COMMENTS OF THE LD. ASSE SSING OFFICER AND THEREFORE A COPY OF THE PENALTY ORDER DATED 24.11. 1986 WAS FORWARDED TO HIM VIDE THIS OFFICE LETTER DATED 10.12.2009 WITH THE REQUEST TO SEND HIS REPORT ON OR BEFORE 26.12.2009. THOUGH THE LD. ASSE SSING OFFICER HAS ITA NO. 1077/DEL/2010 A.Y. 1978-79 4 ARRANGED TO SEND COPIES OF THE ASSESSMENT ORDER AND APPELLATE ORDERS NO ORIGINAL ASSESSMENT RECORDS AND COMMENTS ON THE CON TENTIONS RAISED BY THE APPELLANT WERE FILED TILL THE DATE OF THIS ORDE R. IT APPEARS TO MET THAT SINCE THIS IS A PRETTY OLD MATTER THE ORIGINAL REC ORDS MIGHT NOT HAVE BEEN TRACEABLE AT THE END OF THE ASSESSING OFFICER AND IN THIS SITUATION AS AN ABUNDANT PRECAUTION THE ASSESSING OFFICER MUST HAV E PASSED THE IMPUGNED PENALTY ORDER. IN THIS FACT-SITUATION WHE N THE PENALTY AFTER THE RECEIPT OF THE ORDER OF THE ITAT DELHI HAD ALREADY BEEN IMPOSED VIDE ORDER DATED 24.12.1986 NO FRESH PENALTY COULD HAVE BEEN LEGALLY IMPOSED BY THE LD. ASSESSING OFFICER. THEREFORE THE IMPUGNED PENA LTY ORDER IS NOTHING BUT AN ATTEMPT BY THE ASSESSING OFFICER TO REVIEW HIS OWN ORDER DATED 24.12.1986 WHICH I AM AFRAID IS NOT PERMISSIBLE UNDER THE LAW. ACCORDINGLY THE PENALTY ORDER DATED 31.7.2009 IS H EREBY CANCELLED. 6. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 7. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. BOTH THE COUNSELS FAIRLY AGREED THAT PENALTY HAS ALREADY BE EN IMPOSED IN THIS CASE AND WHICH HAVE BEEN THE SUBJECT MATTER OF ADJUDICATION BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS AND TRIBUNAL. UNDER SUCH C IRCUMSTANCES ASSESSING OFFICER CANNOT AGAIN RE-VISIT THE ISSUE AND IMPOSE PENALTY ONCE AGAIN. UNDER SUCH CIRCUMSTANCES WE DO NOT FIND ANY INFIRMITY I N THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HENCE WE UPHO LD THE SAME. ITA NO. 1077/DEL/2010 A.Y. 1978-79 5 8. IN THE RESULT THE APPEAL BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/5/2010 UPO N CONCLUSION OF HEARING. SD/- SD/- [R.P. TOLANI ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 13/5/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES