RBJ Infratech P.Ltd, New Delhi v. ITO, Ward-20(3), New Delhi

ITA 9530/DEL/2019 | 2009-2010
Pronouncement Date: 30-03-2021 | Result: Allowed

Appeal Details

RSA Number 953020114 RSA 2019
Assessee PAN AAECR0664G
Bench Delhi
Appeal Number ITA 9530/DEL/2019
Duration Of Justice 1 year(s) 3 month(s) 17 day(s)
Appellant RBJ Infratech P.Ltd, New Delhi
Respondent ITO, Ward-20(3), New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 30-03-2021
Assessment Year 2009-2010
Appeal Filed On 13-12-2019
Judgment Text
ITA NO.- 9530/DEL/2019 RBJ INFRATECH PVT. LTD. PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI KULDIP SINGH JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA ACCOUNTANT MEMBER ITA NO:- 9530/DEL/2019 ( ASSESSMENT YEAR: 2009-10) RBJ INFRATECH PVT. LTD. NEW DELHI. VS. ITO WARD-20(3) NEW DELHI. PAN NO: AAECR0664G APPELLANT RESPONDENT ASSESSEE BY : SHRI RAJESH JAIN CA REVENUE BY : SMT. SUSHMA SINGH CIT(DR) ORDER PER ANADEE NATH MISSHRA AM THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-7 NEW DELHI [LD. CIT(A) F OR SHORT] DATED 20.11.2019 FOR ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS: 1. THE CIT(A] ERRED IN UPHOLDING PENALTY ON THE F ACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW U/S 271(L](C) OF THE ACT AMOUN TING TO RS 15 45 000 /- IMPOSED BY THE ASSESSING OFFICER WITHOUT LEGALLY IN ITIATING THE SAME IN ASSESSMENT ORDER AND IN THE SHOW CAUSE NOTICE ISSUED U/S 274 O F THE ACT ANNEXED WITH THE ASSESSMENT ORDER. 2. THE LD. CIT(A) DISMISSED THE APPEAL WITHOUT ADJU DICATING GROUNDS OF APPEAL ON MERIT. THE ORDER PASSED U/S 271(L](C) OF THE ACT IS ILLEGAL ARBITRARY BEING ITA NO.- 9530/DEL/2019 RBJ INFRATECH PVT. LTD. PAGE 2 OF 5 PASSED IN UTTER VIOLATION OF NATURAL JUSTICE AS THE APPELLANT WAS NOT GIVEN SHOW CAUSE NOTICE U/S 274 OF THE ACT SPECIFYING THE EXAC T CHARGE / LIMB UNDER WHICH THE A.O. INITIATED PENALTY U/S 271(L)(C) OF THE ACT . 3. THAT OTHERWISE ALSO THE CIT(A) ERRED IN UPHOLDI NG ORDER U/S 271(L)(C) OF THE ACT PASSED BY THE ASSESSING OFFICER LEVYING PENALTY ON FURNISHING INACCURATE PARTICULARS OF INCOME WHEREAS THE APPELLANT DID NO T FURNISH ANY DOCUMENT(S) SUBMISSIONS AND EXPLANATIONS WHICH WERE INACCURATE. ORDER PASSED BY THE CIT(A) IS AGAINST BINDING JUDICIAL PRECEDENTS. 4. THAT THE CIT(A) ERRED IN UPHOLDING ORDER U/S 271 (1)[C) OF THE ACT PASSED BY THE ASSESSING OFFICER IMPOSING PENALTY OF RS. 15 45 000/- WITHOUT SUPPLYING COPY OF STATEMENT OF THIRD PARTY WHO HAVE BEEN SEARCHED U/S 132(1] OF THE ACT AND WITHOUT PROVIDING OPPORTUNITY OF CROSS EXAMINATION OF WITNESS OF THE REVENUE. THE APPELLANT IN RESPONSE TO SHOW CAUSE NOTICE U/S 274 OF THE ACT REQUESTED THE ASSESSING OFFICER TO SUPPLY THE SAME. 5. THAT THE APPELLANT CRAVES PERMISSION TO FILE ADD ITIONAL GROUNDS OF APPEAL AND CASE LAWS IN SUPPORT OF ITS CONTENTION AT THE TIME OF HEARING. (B) THE ASSESSEE FILED ITS RETURN OF INCOME ON 25.09.2 009 DECLARING AN INCOME AT RS. 920/-. THE ASSESSMENT ORDER DATED 21.12.2016 WAS P ASSED BY THE ASSESSING OFFICER (AO FOR SHORT) UNDER SECTION 147/143(3) OF THE INCOME TAX ACT 1961 (I.T. ACT FOR SHORT) WHEREIN ASSESSEES INCOME WAS ASSESSED AT RS . 50 00 920/- AFTER MAKING AN ADDITION OF RS. 50 00 000/-. THEREAFTER PENALTY U NDER SECTION 271(1)(C) OF THE I.T. ACT WAS LEVIED BY THE AO VIDE ORDER DATED 28.03.2019 A MOUNTING TO RS. 15 45 000/- WHICH WAS MINIMUM PENALTY @100% OF TAX SOUGHT TO BE EVADE D FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEES APPEAL BEFOR E LD. CIT(A) WAS DISMISSED VIDE AFORESAID IMPUGNED APPELLATE ORDER DATED 20.11.2019 OF LD. CIT(A). THE PRESENT APPEAL BEFORE INCOME TAX APPELLATE TRIBUNAL (ITAT FOR S HORT) HAS BEEN FILED BY THE ASSESSEE AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATE D 20.11.2019 WHEREIN THE LD. CIT(A) DISMISSED THE ASSESSEES APPEAL. AT THE TIME OF HE ARING BEFORE US THE LD. AUTHORIZED ITA NO.- 9530/DEL/2019 RBJ INFRATECH PVT. LTD. PAGE 3 OF 5 REPRESENTATIVE (AR FOR SHORT) FOR THE ASSESSEE S UBMITTED THAT VIDE ORDER DATED 22.12.2020 OF CO-ORDINATE BENCH OF ITAT DELHI; THE QUANTUM ADDITION OF THE AFORESAID AMOUNT OF RS. 50 00 000/- HAS ALREADY BEEN DELETED IN ITA NO. 3152/DEL/2018. HE ALSO FILED A COPY OF THE AFORESAID ORDER DATED 22.12.202 0 IN ITA NO. 3152/DEL/2018. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE PENALTY LEVIE D U/S 271(1)(C) OF I.T. ACT SHOULD BE DELETED TOO AS THE CORRESPONDING QUANTUM ADDITION HAS ALREADY BEEN DELETED BY ITAT. THE LEARNED COMMISSIONER OF INCOME TAX (DEPARTMENTA L REPRESENTATIVE) [LD. CIT(DR) FOR SHORT] APPEARING FOR REVENUE DID NOT DISPUTE TH E FACT CLAIMED BY THE LD. AR OF THE ASSESSEE THAT THE QUANTUM ADDITION OF RS. 50 00 000 /- IN RESPECT OF WHICH THE PENALTY WAS LEVIED BY THE ASSESSING OFFICER UNDER SECTION 2 71(1)(C) OF I.T. ACT; AND WHICH IS DISPUTED IN THE PRESENT APPEAL) HAS ALREADY BEEN DE LETED BY ITAT. HOWEVER SHE RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. (B.1) AFTER HEARING BOTH SIDES WE ARE OF THE VIEW THAT PENALTY U/S 271(1)(C) OF I.T ACT LEVIED BY AO HAS NO LEGS TO STAND AT PRESENT WHEN THE CORRESPONDING ADDITIONS MADE BY THE AO HAVE ALREADY BEEN DELETED BY ITAT VIDE ITS A FORESAID ORDER DATED 22.12.2020 WHEN THE AFORESAID QUANTUM ADDITION DOES NOT SURVIVE TH E PENALTY LEVIED U/S 271(1)(C) OF I.T. ACT ON THE CORRESPONDING QUANTUM ADDITION ALSO CANN OT SURVIVE. WE TAKE SUPPORT FROM JUDICIAL PRECEDENT IN THE CASE OF K.C. BUILDERS VS. ACIT 135 TAXMAN 461 (SC) IN WHICH THE HONBLE APEX COURT HELD THAT WHERE THE AD DITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMEN T WAS LEVIED ARE DELETED BY ITAT OR OTHERWISE THE PENALTY CANNOT STAND BY ITSELF AND I S LIABLE TO BE CANCELLED. IN SUCH A SITUATION THERE IS NO BASIS AT ALL AT PRESENT FOR SUSTAINING THE PENALTY U/S 271(1)(C) OF I.T. ITA NO.- 9530/DEL/2019 RBJ INFRATECH PVT. LTD. PAGE 4 OF 5 ACT AND THEREFORE IN SUCH A CASE SUCH PENALTY C ANNOT SURVIVE PRESENTLY. IN VIEW OF THE FOREGOING THE PENALTY LEVIED U/S 271(1)(C) OF I.T. ACT (IN RESPECT OF QUANTUM ADDITION ALREADY DELETED BY ITAT IN AFORESAID ORDER DATED. 2 2.12.2020 IN ITA NO.- 3152/DEL/2018) IS HEREBY CANCELLED. ACCORDINGLY APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS ALREADY ORALLY PRONOUNCED IN THE OPEN COU RT ON 25/03/2021 AFTER CONCLUSION OF THE HEARING IN THE PRESENCE OF REPRESENTATIVES OF BOTH SIDES. NOW THIS ORDER IN WRITING IS SIGNED TODAY ON 30/03/21. SD/- SD/- (KULDIP SINGH) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 30/03/21 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.- 9530/DEL/2019 RBJ INFRATECH PVT. LTD. PAGE 5 OF 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER