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M/s Magnum Steels Ltd. 10, Essel House, Asaf Ali Road, New Delhi vs. Dcit, Cc-16, New Delhi
February, 05th 2019
             IN THE INCOME TAX APPELLATE TRIBUNAL
                   DELHI BENCH: `E' NEW DELHI

        BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                             AND
      SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER

                    I.T.A .Nos. 4957& 4958/Del/2016
               (ASSESSMENT YEARS - 2005-06 & 2006-07)

M/S MAGNUM STEELS LTD.                          vs   DCIT, CC-16,
10, ESSEL HOUSE,                                     NEW DELHI
ASAF ALI ROAD,
NEW DELHI
PAN No. AADCM6400E)
(APPELLANT)                                         (RESPONDENT)
           Appellant by         Shri Rajiv Saxena, Adv. & Sh. Shyam
                                Sunder, A.R.
           Respondent by        Ms. Rinku Singh ,Sr. DR.


                                      ORDER

      PER H.S. SIDHU, JM

            These appeals filed by the Assessee are directed against the
      respective Orders of the Ld. CIT(A)-25, New Delhi         relevant to
      assessment years 2005-06 & 2006-07. Since the issues involved in
      these appeals are common and identical, hence, they were heard
      together and are being consolidated by this common order for the
      sake of convenience. The sole issue involved in these appeals is
      relating to confirmation of levy of penalty of Rs. 4,24,12,311/- and
      Rs. 12,36,00,074/- made u/s. 271(1)(c) of the Act respectively.
      2.    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.
                                                                      2


3.    At the time of hearing, Ld. Counsel of the Assessee,          has
stated that ITAT vide its common order dated 18.8.2017 in quantum
appeal Nos. 1342, 1343 & 2004/Del/2013 & 3176 & 3177/Del/2014
(Ayrs. 2005-06 to 2007-08) has deleted all the additions. In this
behalf he filed the copy of the Tribunal's Order dated 18.8.2017 in
assessee's own case and he requested that in both the appeals the
penalty in dispute may be deleted

4.    On the other hand, Ld. DR relied upon the orders of the
authorities below.
5.    We have carefully considered the submissions and perused the
records. We find that in assessee's own case the ITAT vide its
common order dated 18.8.2017 in quantum appeal Nos. 1342, 1343
& 2004/Del/2013 & 3176 & 3177/Del/2014 (Ayrs. 2005-06 to 2007-
08) has deleted the additions vide para no. 50, 52 & 70 at page no.
94 & 159     of the order.     For the sake of convenience, we are
reproducing the relevant finding of the Tribunal as under:-
                     "50....The issue is involved only in ITA No.
                     1342/Del/2013 for the assessment year 2005-06.
                     After examining the facts of the case, we find that
                     assessment in this case was originally framed u/s.
                     143(3) of the Act specifically after examining the
                     investment and Assessing Officer did not find any
                     error and completed the assessment after
                     accepting the investments. these investments have
                     been declared in the books of accounts and the
                     contention of the assessee is that it has filed all
                     the details such as the confirmation, company y
                     master data as proof of address, PAN, Auditor's
                                                3







Report alognwith balance sheet, ITR, MOA/AOA,
share application form etc., and the AO did not
find any material adverse to the evidences
furnished by assessee. It was also submitted that
notices issued were served    to the shareholders
and AO apart from issuing notices to the
shareholders did not make any further enquiry /
efforts to bring any material contrary to the
evidences furnished by       assessee, as such,
assessee submitted that addition made is not
sustainable. On the     other hand, Ld. CIT(DR)
placed reliance on the orders of the authorities
below. Since we have already dealt       with the
legal issue in favour of the assessee by directing
the Assessing Officer to delete the additions made
in the assessment framed under section 153A in
absence of incriminating material during the
search, following the     same the addition in
question in absence of incriminating material and
non-abatement of assessment already framed
under section 143(3) before the date of search,
does not stand and directed to be deleted."


"...52. Since we have already dealt the legal
issue in favour of the assessee by directing the
AO to delete the additions made by the
assessment framed u/s. 153A of the Act for the
aforesaid assessment year, in absence           of
incriminating material found during search and
                                                                    4


                   in absence     of abatement of assessment order
                   already framed before the search, as such, this
                   issue does not survive for adjudication and
                   stands to be deleted.."


                   ..."70.     In view of above discussed binding
                   judicial precedents, evidences produced by
                   assessee, absence of adequate inquiry conducted
                   by the Ld. AO to prove those documents false,
                   absence of any incriminating material during the
                   search and mainly where the Ld. AO himself
                   treated the shares sale transaction as short term
                   capital gain and speculation income which itself
                   shows that there is a transfer of capital assets by
                   the assessee or there is trading in shares with
                   delivery, we are unable to uphold the addition
                   made. In the result, addition made on account of
                   Long Term Capital gain is directed to be
                   deleted."


6.1   Keeping in view of the facts and circumstances of the case, we
find that the additions on which the penalty in dispute was levied,
has already been deleted by the ITAT in quantum appeals, i.e. in
ITA Nos. 1342, 1343 & 2004/Del/2013 & 3176 & 3177/Del/2014
(Ayrs. 2005-06 to 2007-08) in assessee's own case as aforesaid,
hence, the penalty in dispute will not survive on the additions in
dispute. Accordingly, we delete the penalty in dispute in both the
appeals.
                                                                          5







           7.    In the result, both the appeals filed by the Assessee stand
           allowed.
                 Order pronounced on   05.02.2019.


                 Sd/-                                                  Sd/-

     (PRASHANT MAHARISHI)                                       (H.S. SIDHU)
     ACCOUNTANT MEMBER                                      JUDICIAL MEMBER

     Dated: 05-02-2019

SR BHATNAGAR

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

                                                ASSISTANT REGISTRAR
                                                      ITAT, NEW DELHI
6

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