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Income Tax Appellate Tribunal, DELHI BENCH “E”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
ORDER PER H.S. SIDHU : JM The Assessee has filed this appeal against the impugned Order dated 30/4/2014 passed by the Ld. Commissioner of Income Tax (Appeals)-XVI, New Delhi for the relevant assessment year 2001-02 on the following effective ground:-
1. The Ld. Appellate Authority erred in law and on facts
in confirming the penalty of Rs. 3,95,500/- imposed u/s. 271(c) of the Act without affording the proper opportunity to the assessee of being heard. Thus, the penalty imposed should be deleted.
2. The appellate authority erred in law and on facts in confirming the penalty of Rs. 3,95,500/- imposed
u/s. 271(1)© of the Act ignoring the facts and circumstances of the case that the requisite evidences had been placed on record during the course of quantum proceedings. Thus, the penalty imposed should be deleted.
3. The appellants craves the leave to add, substitute,
modify, delete or amend all or any ground of appeal either before or at the time of hearing.
The facts narrated by the Revenue Authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
At the time of hearing, Ld. Counsel of the assessee stated that ITAT vide Order dated 20.05.2016 passed in (AY 2001- 02) in assessee’s own case set aside the issue of validity of reopening to the Ld. First Appellate Authority for adjudication. The facts and findings narrated by the ITAT ‘F’ Bench, New Delhi in its Order dated 20.5.2016 passed in ITA No. 1242/Del/2010 (AY 2001-02) in the assessee’s case are given in para 12 to 16 at page no. 5 to 6 of the order. For the sake of convenience, the relevant paras are reproduced hereunder:-
“12. The assessee has filed an application for admitting an additional grounds which reads as follows:-
The reassessment proceedings initiated u/s. 147/148 of the Act should be held invalid for want of jurisdiction as the pre-conditions for initiation of the said proceedings as stipulated in Section 147 of the Act were not satisfied; and whereas the “reasons to believe” recorded were scanty & vague and also based on specific information.”
We first take up the issue of admission of the additional ground.
After hearing rival contentions, we find that this is purely a legal ground which does not require
investigation into fresh facts. All the facts are on record.
In view of the decision of National Thermal Power
Company Ltd. vs. CIT (1998) 229 ITR 383 (SC), we admit this additional ground of appeal.
15. After considering rival submission as this ground has not been considered by the CIT(A), we deem it fit to set
aside this issue of validity of reopening to the First
Appellate authority for adjudication.
In result, appeal is allowed for statistical purpose.”
After going through the aforesaid finding of the Tribunal, we are of the view that in the quantum proceedings the issue in dispute has been set aside to the Ld. CIT(A) by this Bench vide order dated 20.05.2016 for adjudication, therefore, the penalty in question cannot stand in the eyes of law. Hence, the penalty in dispute stands deleted. Keeping in view of the facts and circumstances of the present case and in the interest of justice, we are of the view that if Ld. CIT(A) made any addition in compliance of the aforesaid ITAT order, then the AO is at liberty to levy the penalty, as per law.
In the result, the appeal of the Assessee stands allowed in the aforesaid manner.
Order pronounced in the Open Court on 22/03/2017.