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Income Tax Appellate Tribunal, DELHI BENCHES: ‘D’, NEW DELHI
Before: SMT. BEENA A PILLAI & SHRI PRASHANT MAHARISHI
ORDER PER BEENA A PILLAI, JUDICIAL MEMBER
Present penalty appeal has been filed by revenue against order dated 14/10/14 passed by Ld. CIT (A)-8, New Delhi, on following grounds of appeal:
1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the penalty u/s 271(1)(c) of the ITO vs. Kashyap Metals & Allied Industries Ltd.
I.T.Act, 1961 of Rs.3,66,39,385/- especially when the appeal against the quantum is still pending before the Tribunal. 2. That the order of ld.CIT(A) is erroneous and is not tenable on facts and in law. 3. That the grounds of appeal are without prejudice to each other.
4. That the appellant craves leave to add, alter, amend or forego any ground(s) of appeal raised above at the time of hearing.”
Brief facts of the case are as under: Assessee filed its return of income on 27/09/08, declaring total income of Rs.5,32,08,378/- including long term capital gain of Rs.4,07,35,010/-. Assessment order was passed on 30/12/10 at income of Rs.6,33,80,570/- by re-computing long term capital gain at Rs.5,08,54,387/- computed by assessee. Aggrieved by order of Ld. AO, assessee preferred appeal before the Ld. CIT (A) who partially granted relief to assessee. Aggrieved by order of Ld. CIT (A), assessee preferred appeal before this Tribunal. 2.1. In the meantime Ld. AO passed penalty order by levying hundred percent penalty of Rs. 3,66,39,385/-. 2.2. Aggrieved by penalty order passed by Ld. AO assessee preferred appeal before Ld. CIT (A) who deleted penalty levied. 2.3. Aggrieved by order of Ld. CIT (A) revenue is in appeal before us now.
At the outset Ld.A.R. submitted that issue regarding quantum addition stands fully settled by order of this Tribunal, wherein indexation benefit has been granted to assessee. He placed reliance upon order of this Tribunal for assessment year
ITO vs. Kashyap Metals & Allied Industries Ltd. under consideration in placed at page 1- 12 of paper book in support. 3.1. Further it has been submitted that, revenue preferred appeal before Hon’ble Delhi High Court and admitted revenue’s appeal in ITA No. 1029/15 vide order dated 22/12/15, wherein question of law framed as under: “B. Whether in the present facts and circumstances of the case the ITAT has erred in allowing indexation benefit on the borrowing cost when the leasehold rights was cancelled on 29 March, 1998 and the same was restored back on 06/08/04?” A copy of the said order has been placed at page 13-14 of paper book. 3.2. He submitted that said question was decided by Hon’ble Delhi High Court , vide order dated 16/05/2017, a copy of which has been placed at page 15-18 of paper book, wherein revenue’s appeal has been dismissed, thereby upholding order of this Tribunal. 3.3. Under such circumstances we do not see any reason for sustaining the penalty. 3.4. Accordingly we dismiss ground raised by revenue.
4. In the result appeal filed by revenue stands dismissed. Order pronounced in the open court on 29th January, 2019. Sd/- Sd/- (PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dt. 29th January, 2019 *Gmv
ITO vs. Kashyap Metals & Allied Industries Ltd.