M/S. A.K. PLANTATION PVT. LTD.,NEW DELHI vs. ITO, NEW DELHI

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ITA 494/DEL/2013Status: DisposedITAT Delhi03 February 2016AY 2006-075 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

Since the original assessment order was set aside for want of correct jurisdiction, the penalties levied based on that assessment cannot stand. Therefore, the penalties are deleted.

What were the facts?

The assessee's appeals were against penalty orders confirmed by the CIT(A). The ITAT had previously set aside an assessment order due to jurisdictional issues, finding two assessment orders for the same assessee and assessment year.

What were the issues?

Whether penalties can be sustained when the underlying assessment order is vitiated by jurisdictional defects. The validity of penalties levied in the absence of a valid assessment.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 271(1)(b)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH “A”, NEW DELHI

Before: SHRI H.S. SIDHU & SHRI L.P. SAHU

Hearing: 13.01.2016

Date of Hearing: 13.01.2016 Date of Order : 03.02.2016 ORDER ORDER ORDER ORDER

PER PER H.S. SIDHU : JM PER PER H.S. SIDHU : JM H.S. SIDHU : JM H.S. SIDHU : JM

1.

The Assessee has filed these appeals against the separate impugned orders both dated 20/11/2012 passed by the Ld. Commissioner of Income Tax (Appeals)-IV, New Delhi for the relevant assessment year 2006-07. Since the issues involved in these appeals are common and identical, hence, these appeals are being consolidated and disposed of by this common order for the sake of convenience, by dealing with ITA No. 493/Del/2013.

2.

The grounds relating to penalty u/s. 271(1)(c) raised in the Assessee’s Appeal No. 493/Del/2012 read as under:- 1

“That the Ld. CIT(A) has erred both in law and facts of the case, in confirming the penalty without appreciating the facts and circumstances of the cases and ignoring the basics.

It is, therefore, prayed that the appeal may kindly be accepted.”

3.

The grounds relating to penalty u/s. 271(1)(b) raised in the Assessee’s Appeal No. 494/Del/2012 read as under:-

“That the Ld. CIT(A) has erred both in law and facts of the case, in confirming the penalty without appreciating the facts and circumstances of the cases and ignoring the basics.

It is, therefore, prayed that the appeal may kindly be accepted.”

4. 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.

5. At the time of hearing, Ld. Counsel of the assessee stated that ITAT vide Order dated 08.08.2014 passed in (AY 2006-07) in assessee’s own case set aside the assessment order dated 25.11.2008 and restored the matter to the file of the AO to do the needful in accordance with law having brought the correct jurisdiction of the assessee. The facts and findings narrated by the ITAT ‘A’ Bench, New Delhi in its Order dated 8.8.2014 passed in ITA No. 3883/Del/2011 (AY 2006-07) in the assessee’s case are given in para 3 to 5. For the sake of convenience, the relevant paras are reproduced hereunder:-

“3. At the time of hearing before us, it is submitted by the learned counsel that the assessee had filed the return declaring total income of Rs. 3,22,414/- on 21.03.2007. Notice under Section 143(2) was issued by the ITO, Ward 1(3) and the same was served upon the assessee. In response to the notice, the assessee’s authorized representative Shri P.K. Agrawal, Chartered Accountant attended from time to time and filed the details as asked for by the Assessing Officer. The Assessing Officer, satisfied with the explanation furnished by the assessee, accepted the returned income vide order under Section 143(3) dated 28.11.2008. Copy of the assessment order is placed at page 1 of the assessee’s paper book. That the assessee was surprised to receive another assessment order dated 25.11.2008 passed under Section 143(3)/144 determining the total income at Rs. 33,69,514/-. This order is passed by ITO, Ward 1(1), New Delhi. He submitted that how there can be two assessment orders for the same assessee and for same assessment year. He also submitted that the notice claimed to have been issued under Section 143(2) by the ITO, Ward 1(1), was never served upon the assessee. He, therefore, submitted that the assessment order dated 25.11.2008 passed by the Assessing Officer of Ward 1(1) may be quashed and assessment order dated 28.11.2008 passed by ITO, Ward 1(3) should be sustained.

4.

Learned DR, on the other hand, relied upon the assessment order dated 25.11.2008 and stated that this order is earlier and if at all one order is to be quashed, then the assessment order dated 28.11.2008 should be quashed. However, she was unable to explain how there can be two assessment orders for the same assessee for the same assessment year.

5.

We have carefully considered the submissions of both the sides and perused relevant material placed before us. We find that there are two assessment orders on record in the case of the assessee for same assessment year. In both the assessment orders, the name, address and permanent account number are the same. Both the assessment orders mentioned that the assessee filed the return declaring an income of Rs. 3,22,414/- on 21.3.2007. Thus, both the Assessing Officers proceeded on the basis of same return of income. Admittedly, the two Assessing Officers cannot have jurisdiction upon one assessee. Then, how and why two separate Assessing Officers proceeded to assess the same assessee for same assessment year is the question which needs to be enquired into by the concerned Commissioner of Income Tax. We, therefore, set aside the assessment order dated 25.11.2008 which is in appeal before us and restore the matter to the file of the Assessing Officer. We also direct that a copy of this order may be sent to the concerned Commissioner of Income Tax who may examine which Assessing Officer has the correct jurisdiction of the assessee and then do the needful in accordance with law.”

6.

After going through the aforesaid finding of the Tribunal, we are of the view that in the quantum proceedings the assessment order dated 25.11.2008 has been set aside by this Bench vide order dated 08.08.2014 for want of correct jurisdiction, therefore, the penalty in question cannot stand in the eyes of law. Hence, the penalty in dispute stands deleted. However, the AO is at liberty to initiate the fresh penalty proceedings, after the completion of the assessment.

7.

As regards as aforesaid, the penalty in dispute in ITA No. 494/Del/2013 also stands deleted.

8.

In the result, both the appeals of the Assessee stands allowed. Order pronounced in the Open Court on 03/02/2016.

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