M/s. Vipul Ltd., Gurgaon v. DCIT, New Delhi

ITA 2549/DEL/2014 | 2008-2009
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 254920114 RSA 2014
Assessee PAN AAACA5396C
Bench Delhi
Appeal Number ITA 2549/DEL/2014
Duration Of Justice 2 year(s) 5 month(s) 3 day(s)
Appellant M/s. Vipul Ltd., Gurgaon
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-09-2016
Date Of Final Hearing 21-07-2016
Next Hearing Date 21-07-2016
Assessment Year 2008-2009
Appeal Filed On 25-04-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SMT DIVA SINGH JUDICIAL MEMBER AND SH.L.P.SAHU ACCOUNTANT MEMBER I.T.A .NO.-254 9/DEL/2014 (ASSESSMENT YEAR-20 08-09) VIPUL LTD. VIPUL TECH SQAURE-I GOLD COURSE ROAD SECTOR-43 GURGAON-122009. PAN-AAACA5396C (APPELLANT) VS DCIT CIRCLE-2 NEW DELHI (RESPONDENT) APPELLANT BY SH. RAJESH ARORA CA RESPONDENT BY SH. SANJAY KUMAR CIT DR ORDER PER DIVA SINGH JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 04.02.2014 OF CIT(A)-III NEW DE LHI PERTAINING TO 2008 09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND FACTS OF THE CA SE IN CONFIRMING THE PENALTY ON RS.5 07 605/- U/S 271(1)(C) OF THE I NCOME TAX ACT 1961 TREATING THE ADDITION U/S 14A AS CONCEALED IN COME AND IGNORING THE SUBMISSION AND EXPLANATION OF ASSESSEE WHICH IS HIGHLY UNJUSTIFIED ARBITRARY BAD IN LAW AND UNCAL LED FOR. 2. THE ASSESSEE CRAVES TO HAVE THE RIGHT TO ADD AMEND OR MODIFY THE GROUNDS OF APPEAL. 2. ADDRESSING THE FACTS IT WAS SUBMITTED THAT AS A RESULT OF THE APPEAL EFFECT ORDER PASSED BY THE AO U/S 250/143(3) DATED 13.11.2 013 THE SOLE ISSUE FOR LEVY OF PENALTY IS THE ADDITION SUSTAINED IN APPEAL U/S 14A . IN THE FACTS OF THE PRESENT CASE INVITING ATTENTION TO PARA 3 OF THE IMPUGNED ORDER IT WAS SUBMITTED THAT IT DATE OF HEARING 21.07.2016 DATE OF PRONOUNCEMENT 28.09.2016 I.T.A .NO.-2549/DEL/2014 PAGE 2 OF 3 HAS CONSISTENTLY BEEN CLAIMED THAT NO EXEMPT INCOME WAS EARNED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. IN THESE CIRCUMST ANCES RELYING UPON THE POSITION RENDERED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS HOLCIM INDIA PVT.LTD. [2014] 90 CCH 081 (DELHI HC) AND JOINT INVESTMENT PVT.LTD. [2015] 372 ITR 674 (DELHI) WHICH HAD BEEN FOLLOWED BY THE ITAT IN THE CASE OF ACIT VS KAJARIA CERAMICS LTD. IN ITA NO.4320/DEL/2014 VIDE ORDER DATED 21.10.2015 IT WAS SUBMITTED THAT IN THE FACTS OF TH E PRESENT CASE EVEN ON MERIT THE ASSESSEE HAD A GOOD CASE THUS THE OCCASION TO L EVY PENALTY THEREON CANNOT SURVIVE. 2.1. THE REVENUE REPRESENTED BY SH. SANJAY KUMAR C IT DR SUBMITTED THAT THIS IS AN ASSERTION OF FACT BY THE ASSESSEE BEFORE THE CIT(A) AND IS NOT A FINDING OF FACT ARRIVED AT BY ANY AUTHORITY. 2.2. IN THESE CIRCUMSTANCES THE LD. AR SUBMITTED T HAT HE WOULD HAVE NO OBJECTION IF THE FACT IS VERIFIED. 3. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS OF T HE PARTIES BEFORE THE BENCH THE ISSUE IS RESTORED BACK TO THE AO FOR VERIFICATI ON ON FACTS. INCASE IT IS FOUND AS A FACT THAT NO EXEMPT INCOME HAS BEEN EARNED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION THEN CONSIDERING THE JUDICIAL PRECEDE NT CITED THE PENALTY IS DIRECTED TO BE QUASHED. NO DOUBT THE PENALTY PROCEEDINGS A ND ASSESSMENT PROCEEDINGS ARE SEPARATE AND DISTINCT BUT THE MERE FACT THAT AN ARGUMENT WAS NOT ADVANCED IN THE QUANTUM PROCEEDINGS CAN NOT BE PRECLUDED IN THE PENALTY PROCEEDINGS. IF AN ARGUMENT IS ADVANCED IT HAS TO BE CONSIDERED IN THE PENALTY PROCEEDINGS IN THE LIGHT OF THE REQUIREMENTS OF THE SAID PROVISION. A CCORDINGLY WE DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE FOR VERIFICATION ON FACTS. THE AO IS DIRECTED TO PASS A I.T.A .NO.-2549/DEL/2014 PAGE 3 OF 3 SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH OF SEPTEMBER 2016. SD/- SD/- (L.P.SAHU) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIS TANT REGISTRAR ITAT NEW DELHI