Smt. Kiran Lata,, Almora v. ACIT, Nainital

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO. 3319/DEL/2009 ASSESSMENT YEAR : 2002-03 SMT. KIRAN LATA S.N. HOSPITAL NEAR ROADWAYS BUS STATION RANIKHET DISTT. ALMORA. PAN : ACMPS0030N VS. ACIT NAINITAL. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI MANISH GUPTA SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 25 TH MARCH 2009 FOR ASSESSMENT YEAR 2002-03. 2. IN THE PRESENT APPEAL THE ASSESSEE IS CONTESTIN G LEVY OF CONCEALMENT PENALTY ON THE ADDITION MADE ON ACCOUNT OF VALUATIO N ON THE BASIS OF DVOS REPORT. VIDE LETTER FILED BY THE ASSESSEE ON RECOR D IT HAS BEEN INFORMED THAT HONBLE SUPREME COURT FOR THE YEAR UNDER CONSIDERAT ION IN THE SLP FILED BY THE ASSESSEE HAS SET ASIDE THE JUDGEMENT OF HONBLE HIG H COURT AND HAS REMITTED THE MATTER TO THE AO FOR DENOVO CONSIDERATION IN AC CORDANCE WITH THE LAW. THE RELEVANT ORDER OF HONBLE SUPREME COURT ATTACHED AL ONG WITH THE LETTER IS REPRODUCED BELOW FOR THE SAKE OF CONVENIENCE:- ITA NO.3319/DEL/2009 2 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7410 OF 2009 (ARISING OUT OF S.L.P (C) NO.19144/2008) KIRAN LATA . APPLICANT (S) VERSUS INCOME TAX OFFICER-I & ANR. . RESPONDENT ( S) ORDER LEAVE GRANTED. IN THIS CASE WE ARE CONCERNED WITH AN ADDITION MA DE UNDER SECTION 69 OF THE INCOME TAX ACT. THE MAIN OBJECTI ON RAISED BY THE ASSESSEE BEFORE THE HIGH COURT WAS THAT THE ASS ESSING OFFICER COULD NOT HAVE CALLED FOR THE VALUATION REPORT ON T HE COST OF CONSTRUCTION WITHOUT REJECTING THE BOOKS OF ACCOUNT S. WE FIND MERIT IN THIS CONTENTION. HOWEVER WE WANT THE ASSESSING OFFICER TO CONSIDER WHETHER BOOKS OF ACCOUNTS ARE BEING ACCEPT ED OR REJECTED AND ITS CONSEQUENCES. IF THE ASSESSING OFFICER REJ ECTS THE SAID BOOKS HE MUST GIVE REASONS IN ACCORDANCE WITH LAW. IN THE CIRCUMSTANCES WE SET ASIDE THE IMPUGNED JU DGMENT OF THE HIGH COURT AND WE REMIT THE MATTER TO THE ASSES SING OFFICER FOR DE NOVO CONSIDERATION IN ACCORDANCE WITH LAW. CIVIL APPEAL IS ACCORDINGLY ALLOWED. NO ORDER A S TO COSTS. SD/- J. (S.H. KAPADIA) SD/- ..J. (AFTAB ALAM) NEW DELHI NOVEMBER 06 2009. 3. REFERRING TO THE ABOVE ORDER OF HONBLE SUPREME COURT IT IS MENTIONED IN THE APPLICATION THAT PENALTY RELATING TO ORIGINAL A SSESSMENT WHICH HAS BEEN REMITTED TO THE FILE OF AO CANNOT BE HELD TO BE VAL ID THEREFORE THE APPEAL OF THE ASSESSEE SHOULD BE ALLOWED BY DELETING THE PENALTY. ITA NO.3319/DEL/2009 3 4. LD. DR RELIED ON THE ORDER OF AO AND CIT (A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE PENALTY RELATES TO THE ASSESSMENT WHICH HAS BEEN DIRECTED TO BE FRAMED DENOVO IN ACCORDANCE WIT H LAW BY THE HONBLE SUPREME COURT. THEREFORE THE VERY BASIS OF LEVY O F PENALTY DOES NOT SURVIVE. THEREFORE THE APPEAL FILED BY THE ASSESSEE IS TO B E ALLOWED. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. . 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 06.01. 2010. SD/- SD/- [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 06.01.2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES