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Income Tax Appellate Tribunal, DELHI BENCH: ‘D’ NEW DELHI
Before: SMT DIVA SINGH & SH.L.P.SAHU
Date of Hearing 19.07.2016 Date of Pronouncement 18.10.2016 ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 27.11.2013 of CIT(A)-19, New Delhi pertaining to 2004-05 assessment year on various grounds including Ground No.1.5 which reads as under:- 1.5. “On facts and in law, the CIT(A) erred in upholding the order of the Assessing Officer levying penalty of Rs.2,79,233/- u/s 271(1)(c) of the Act in light of the fact that the Hon’ble ITAT has quashed the addition in the quantum appeal vide order dated 30.03.2012 which has further been upheld by the Hon’ble Delhi High Court vide order dated10.07.2013.”
Ld.AR inviting attention to the consolidated order of the ITAT dated 30.03.2012 in & 5698/Del/2010 pertaining to 2003-04 & 2004-05 AYs submitted that the appeal of the assessee deserves to be allowed as the penalty becomes infructuous. Reliance was placed upon the decision of the Hon’ble High Court dated 10.07.2013 in ITA No.302/2013 the Hon’ble High Court was pleased to dismiss the appeal of the Revenue holding as under:-
I.T.A .No.-2007/Del/2014
“The respondent-assessee had claimed and allowed benefit under Section 10A of the Income Tax Act. The issue raised is that whether the said benefit should be computed without taking into consideration unabsorbed depreciation. The Tribunal by the impugned order has followed the decision of Karnataka High Court vs ACIT v.Yokogava India Limited, (2012) 341 ITR 385 (Karnataka). Bombay High Court has also reached the same conclusion though for different reasons in Hindustan Lever Limited v. Deputy Commissioner of Income Tax and Anr., (2010) 325 ITR 102 (Bombay). These two decisions were noticed and their final finding approved by this Court in Commissioner of Income Tax v.TEI Technologies Private Limited in and 2067/2010 decided on 27.08.2012. In view of the aforesaid position, no substantial question of law arises for consideration and the appeal of the revenue is dismissed.”
Ld.Sr.DR inviting attention to the impugned order submitted that the ex- parte order has been passed by the CIT(A) as these facts had never been brought to the notice of the said authority.
A perusal of the record shows that the original assessment was completed u/s 143(3) vide order dated 10.01.2006 at an income of Rs.25,209/- under normal provisions and Rs.9,57,987/- under special provision u/s 115JB. The assessment so framed was re-opened u/s 147 of the Income Tax Act, 1961 after recording the following reasons:- “The assessment was completed in scrutiny on an income of Rs.25,209/- under normal provision and Rs.9,57,987/- under special provision. On examination of the records, it is found that the assessee had unabsorbed depreciation of Rs.4,44,952/- only to be set off, instead of Rs.17,35,684/- which was set off. Thus, a sum of Rs.12,90,732/- has been sent off in excess. In view of the above, I have reasons to believe that the income of Rs.12,90,732/- chargeable to tax has escaped assessment within the meaning of section 147/148.”
After obtaining the necessary approvals and disposing the objections of the assessee the AO after hearing the assessee held that the exemption u/s 10A would be allowed to the assessee only after setting of brought forward losses of Rs.4,44,952/-. As a result thereof vide order dated 28.03.2012, penalty proceedings for filing inaccurate particulars were initiated and after show-causing the assessee and considering the reply, penalty of Rs.2,79,233/- was imposed. In appeal before the First Appellate Authority, none appeared in response to notice issued. Considering the facts that the Ld.AR relying upon the order of the ITAT in I.T.A .No.-2007/Del/2014 the quantum proceedings which has been upheld by the Hon’ble High Court has made out a plea that the penalty order becomes infructuous, we find that accepting the departmental stand that no such plea was raised before the CIT(A) and the assessee infact remained unrepresented. We find that in these peculiar facts and circumstances, it would be appropriate to set aside the impugned order. It is seen that though the order of the ITAT is dated 30.03.2012 the same was not brought to the notice of the CIT(A) who has passed the order on 22.11.2013 after giving various opportunities to the assessee as per record. When an appellate forum statutorily is available to the assessee, we find no good reason why the assessee should fail to appear before it and not avail an opportunity. The issue is accordingly restored back to the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard taking into consideration the orders passed in the quantum proceedings by the ITAT and the Hon’ble High Court.
In the result, the appeal of the assessee is allowed for statistical purposes.. The order is pronounced in the open court on 18th October, 2016.