DCIT, New Delhi v. M/s. Sona Somic Lemforder Components Ltd., New Delhi

ITA 3141/DEL/2010 | 2002-2003
Pronouncement Date: 27-08-2010 | Result: Allowed

Appeal Details

RSA Number 314120114 RSA 2010
Assessee PAN AAACS4766Q
Bench Delhi
Appeal Number ITA 3141/DEL/2010
Duration Of Justice 2 month(s) 2 day(s)
Appellant DCIT, New Delhi
Respondent M/s. Sona Somic Lemforder Components Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 27-08-2010
Assessment Year 2002-2003
Appeal Filed On 24-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NO.3141/DEL./2010 (ASSESSMENT YEAR : 2002-03) DCIT CIRCLE 9 (1) VS. M/S. SONA SOMIC LEMFORDER NEW DELHI. UGF-6 INDRAPRAKASH BUILDING 21 BARAKHAMBA ROAD NEW DELHI 110 001. (PAN : AAACS4766Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIDUR PURI CAR REVENUE BY : SHRI SUNIL GAUTAM SENIOR DR ORDER PER B.C. MEENA ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE ARISES OUT OF THE ORDER OF CIT (APPEALS)-XII NEW DELHI DATED 25.2.2010 FOR THE AS SESSMENT YEAR 2002-03. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPE AL :- 1. LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN CANCELING THE PENALTY OF RS.7 23 790/- IMPOSED BY THE A.O. U/S 27 1(1)(C) OF THE I.T. ACT. 2. THE APPELLANT CRAVES TO AMEND MODIFY ALTER AD D OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR D URING THE HEARING OF THIS APPEAL. ITA NO.3141/DEL./2010 2 2. THE ONLY ISSUE INVOLVED IS CANCELLATION OF PENAL TY U/S 271(1)(C) BY HOLDING THAT ORDER IS BARRED BY LIMITATION AS PER P ROVISIONS OF PROVISO TO SECTION 275(1)(A) OF INCOME-TAX ACT 1961. 3. LEARNED DR PLEADED THAT THE CIT (A) HAS WRONGLY HELD THE PENALTY ORDER AS BARRED BY LIMITATION. HON'BLE MADRAS HIGH COURT IN THE CASE OF RAYALA CORPORATION P. LTD. VS. UNION OF INDIA AND O THERS REPORTED IN 288 ITR 452 (MAD.) HAS HELD THAT THE PROVISO TO SECTION 275 (1)(A) OF THE INCOME-TAX ACT 1961 DOES NOT NULLIFY THE AVAILABILITY TO THE REVENUE OF THE PERIOD OF LIMITATION OF SIX MONTHS FROM THE END OF THE MONTH WHEN THE ORDER OF INCOME TAX APPELLATE TRIBUNAL IS RECEIVED BY THE REVENUE. IN VIEW OF THESE FACTS HE PLEADED THAT THE ORDER OF CIT (A) IS UNJUSTIFIED AN D THE SAME REQUIRES TO BE SET ASIDE. 4. ON THE OTHER HAND LEARNED AR FOR THE ASSESSEE S UBMITTED THAT THIS ISSUE IS COVERED BY THE DECISION OF ITAT AMRITSAR BENCH IN THE CASE OF TARLOCHAN SINGH & SONS (HUF) VS. ITO REPORTED IN 2008-114-TTJ -82-TASR ON THE SIMILAR FACTS THE ORDER HAS BEEN QUASHED FOR IMPOS ING PENALTY. HE PLEADED THAT THE HON'BLE MADRAS HIGH COURT IN ITS AFORESAID JUDGMENT HAS NOT CONSIDERED THE BOARD CIRCULAR NO.7/2003 DATED 5.9.2 003. 5. IN REJOINDER LEARNED DR SUBMITTED THAT THE ITAT IN THE CASE CITED BY LEARNED AR HAS DRAWN A NEGATIVE INFERENCE. HE ALSO PLEADED THAT THE HIGH COURT ORDER SHOULD GET THE PRIORITY TO THE ITAT ORD ER. ITA NO.3141/DEL./2010 3 6. AFTER HEARING BOTH THE SIDES WE HOLD THAT WHEN A DECISION OF HON'BLE HIGH COURT IS AVAILABLE ON THE SAME ISSUE IT GETS THE PRECEDENCE TO THE DECISION OF ITAT. HON'BLE MADRAS HIGH COURT HAS CL EARLY HELD THAT PROVISO TO SECTION 27591)(A) OF THE INCOME-TAX ACT DOES NOT NULLIFY THE AVAILABILITY TO THE REVENUE OF THE PERIOD OF LIMITATION OF SIX MONT HS FROM THE END OF THE MONTH WHEN THE ORDER OF THE ITAT IS RECEIVED BY THE REVENUE. THUS THE HON'BLE HIGH COURT HAD UNAMBIGUOUSLY DECIDED THE IS SUE WITH A CLEAR FINDINGS. THEREFORE RESPECTFULLY FOLLOWING THE DE CISION OF HON'BLE MADRAS HIGH COURT WE HOLD THAT THE CIT (A) WAS NOT JUSTIF IED IN HOLDING THAT THE ORDER PASSED U/S 271(1)(C) WAS BARRED BY LIMITATION AND THE ORDER OF THE CIT (A) IS SET ASIDE. ON THE ISSUE OF MERITS THE LE ARNED AR ALSO SUBMITTED THAT THE PENALTY HAS BEEN LEVIED U/S 271(1)(C) ON THE TW O DISALLOWANCES I.E. ONE OF RS.13 05 178/- WHICH WAS 1/6 TH OF RS.78 31 066/- WHICH WAS INADVERTENTLY A CLERICAL MISTAKE AND WAS NOT ADDED BACK TO THE INCO ME OF THE ASSESSEE AND SIMILARLY OTHER DISALLOWANCE OF MISC. INCOME OF RS. 7 22 242/- OUT OF ERP EXPENSES WHICH HAS BEEN ADDED BACK TO THE COMPUTATI ON OF INCOME THIS WAS ALSO A PART OF RS.52 00 144/- WHICH WAS CLAIMED AS REVENUE EXPENDITURE CHARGED TO DEFERRED REVENUE BY INADVERTENT AND CLER ICAL MISTAKE AND THE AMOUNT IS ADDED BACK TO THE INCOME OF THE ASSESSEE. THUS LEARNED AR SUBMITTED THAT ON MERITS ALSO PENALTY IS NOT LEVIA BLE WHEN ASSESSEE HAD NEITHER CONCEALED PARTICULARS OF INCOME NOR FILED I NACCURATE PARTICULARS OF ITA NO.3141/DEL./2010 4 INCOME. IT WAS ONLY A CLERICAL INADVERTENT MISTAK E. ON THE OTHER HAND LEARNED DR SUBMITTED THAT THE CIT (A) HAS NOT CONSI DERED THE MERITS OF THE CASE FOR THE LEVY OF PENALTY THEREFORE IF THE ORD ER OF CIT (A) ON THE ISSUE OF LIMITATION IS REVERSED THAN THE MATTER MAY BE RESTO RED TO THE FILE OF CIT(A) TO BE DECIDED ON MERITS. CIT (A) HAS NOT DECIDED THE ISSUE ON MERITS. THEREFORE IN THE INTEREST OF JUSTICE AND EQUITY I T SHALL BE APPROPRIATE TO DIRECT CIT (A) TO DECIDE THE APPEAL ON MERITS. WE ORDER A CCORDINGLY. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF AUGUST 2010. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 27 TH DAY OF AUGUST 2010 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XII NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.