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ACIT, Central Circle 25, New Delhi. Vs. M/s. Saviour Builders Pvt. Ltd., BB-150, Near Choti Sabji Mandi, Janakpuri, New Delhi.
December, 02nd 2019
                                       1                      M.A No. 698/Del/2019

                        DELHI BENCH: `G' NEW DELHI

                           M.A NO. 698/Del/2019
                 ( I.T.A. No. 4818/DEL/2019 A.Y 2010-11)

     ACIT,                              Vs   M/s. Saviour Builders Pvt. Ltd.,
     Central Circle ­ 25,                    BB-150, Near Choti Sabji Mandi,
     New Delhi.                              Janakpuri, New Delhi.
                                             (AALCS 4258 C)

     (APPLICANT)                             (RESPONDENT)

                 Applicant by      Ms. Nidhi Sharma, Sr. D.R.
                 Respondent by     Dr. Shashwat Bajpai, Adv.

                   Date of Hearing             29.11.2019
                   Date of Pronouncement       02.12.2019


      This Miscellaneous Application is filed by the Revenue in respect of order
dated 16.04.2019 passed by the Tribunal.

2.    The Ld. DR submitted that the order of the Tribunal is not acceptable on
merit by the Revenue as per the specific provision u/s 271AAA of the Income
Tax Act thereby the assessee shall pay by way of penalty in addition to tax if
any payable by him a sum of computed at a rate of 10% of the undisclosed
                                        2                      M.A No. 698/Del/2019

income of the specified previous year. Since the assessee had already filed its
original return u/s 139(1) before the search date, therefore, A.Y. 2010-11 is not
a specified year as per the definition of section 271AAA of the Act. Therefore,
the Ld. DR submitted that penalty u/s 271AAA of the Act is not applicable in
A.Y. 2010-11 and levying penalty u/s 271(1)(c) of the Act would be rightly
applicable in this case. Therefore, initiation of levying penalty u/s 271(1)(c)
instead of 271AAA of the Act for A.Y. 2010-11 is a correct action taken by the
Revenue. Therefore, the Ld. DR prayed that the order dated 16.04.2019 be set
aside and the appeal be restored for fresh hearing on merit.

3.    The Ld. AR submitted that the Revenue has filed appeal before the
Hon'ble Delhi High Court being ITA No.847/2019 and the said appeal is
admitted vide order dated 09.10.2019, therefore, this Misc. Application is a
multiplicity of proceeding and becomes infructuous. Therefore, the Ld. AR
submitted that this Misc. Application be dismissed.

4.    We have heard both the parties and perused all the relevant materials
available on record. It is pertinent to note that the Hon'ble Delhi High Court
has admitted the appeal filed by the Revenue, on the same issue contested in
the present Misc. Application filed by the Revenue. Therefore, the Misc.
Application does not survive. Besides this reason, the Revenue is also seeking
review of the order dated 16.04.2019 which is beyond the scope of Section 254
of Income Tax Act, 1961. There is no mistake apparent from the record.
Therefore, this Misc. Application is dismissed.
                                       3                      M.A No. 698/Del/2019

5.   In the result, this Misc. Application filed by the Revenue is dismissed.
Order pronounced in the Open Court on the 2nd day of December, 2019.

        Sd/-                                                        Sd/-

   (R. K. PANDA)                                      (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER                                      JUDICIAL MEMBER

Dated:            02/12/2019
Priti Yadav, Sr. PS *
Copy forwarded to:

1.   Appellant
2.   Respondent
3.   CIT
4.   CIT(Appeals)
5.   DR: ITAT

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