The ITO, Ward-8(1),, Ahmedabad v. Top Media Entertainment Ltd.,, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND D. C. AGRAWAL AM) ITA NO.572/AHD/2009 A. Y.: 2003-04 THE INCOME TAX OFFICER WARD 8(1) AHMEDABAD VS TOP MEDIA ENTERTAINMENT LTD. C/O. SHRI INDRAJEET SINGH VAGHELA 202-A ASAVURI COMPLEX B/H. FUN REPUBLIC SATELITE AHMEDABAD PA NO. AAACN 5306 R (APPELLANT) (RESPONDENT) APPELLANT BY SHRI K. MADHUSUDAN SR. DR RESPONDENT BY SHRI S. N. DIVETIA AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER OF THE CIT(A)-XIV AHMEDABAD DATED 30 TH DECEMBER 2008 FOR ASSESSMENT YEAR 2003-04 CHALLE NGING THE CANCELLATION OF THE PENALTY LEVIED U/S 271 (1) ( C ) OF THE IT ACT. 2. THE LEARNED CIT(A) NOTED THAT IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE IT ACT THE AO DISALLOWED THE CLAIM O F LOSS OF SALE OF SHARES OF RS.17 31 07 400/- AND FURTHER DISALLOWED CLAIM OF DEPRECIATION AND ELECTRICITY EXPENSES OF RESIDENTIA L FLAT AMOUNTING TO RS.12 44 937/-. THE AO INITIATED PENALTY PROCEEDING S U/S 271 (1) ( C ) OF THE IT ACT AND VIDE SEPARATE ORDER IMPOSED PENAL TY. THE LEARNED CIT(A) HOWEVER CANCELED THE PENALTY AND ALLOWED TH E APPEAL OF THE ASSESSEE. ITA NO.572/AHD/2009 ITO W 8(1) AHMEDABAD VS TOP MEDIA ENTERTAINMENT L TD. 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT THE QUANTUM ADDITION WAS SUBJECT MATTER IN APP EAL BEFORE THE TRIBUNAL IN THE CASE OF THE SAME ASSESSEE IN ITA NO .3328/AHD/2008 FOR SAME ASSESSMENT YEAR AND THE TRIBUNAL VIDE ORDE R DATED 02-12- 2008 BY FOLLOWING THE PRECEDING ASSESSMENT YEAR ORD ER OF THE TRIBUNAL SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW ON QUANTUM AND RESTORED THE MATTER TO THE FILE OF THE LEARNED CIT( A) TO DECIDE THE ISSUES AFRESH AFTER PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. ON THE OTHER HAND THE LEARNED DR REL IED ON THE ORDER OF THE AO. 4. ON CONSIDERATION OF THE ABOVE FACTS WE FIND THA T THE ADDITION ON QUANTUM ON WHICH THE PENALTY WAS IMPOSED REMAINED T HE SUBJECT MATTER IN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUN AL FOLLOWING THE ORDER FOR THE PRECEDING ASSESSMENT YEAR SET ASIDE T HE ORDERS ON QUANTUM TO THE FILE OF THE LEARNED CIT(A) FOR DECID ING THE ISSUES AFRESH ON MERIT. SINCE THE QUANTUM APPEAL IS PENDIN G BEFORE THE LEARNED CIT(A) THEREFORE IT WOULD BE APPROPRIATE TO RESTORE THE PENALTY MATTER ON THE SAME FACTS TO THE FILE OF THE LEARNED CIT(A) FOR DECISION IN ACCORDANCE WITH LAW ON MERIT AFTER THE VIEW TAKEN ON QUANTUM APPEAL BY THE LEARNED CIT(A). WE ACCORDINGL Y SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE APPEAL TO HIS FILE WITH DIRECTION TO RE-DECIDE THE PENALTY APPEAL AFTER DEC ISION OF THE QUANTUM APPEAL BY GIVING REASONABLE SUFFICIENT OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.572/AHD/2009 ITO W 8(1) AHMEDABAD VS TOP MEDIA ENTERTAINMENT L TD. 3 5. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 4 -02-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 4-02-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD