ITA NO. 3556/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "H", NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
AND
SHRI J.S. REDDY, ACCOUNTANT MEMBER
I.T.A. No. 3556/DEL/2013
F.Y. : 2008-09
ITO, WARD 51(5), VS. M/S TRIVENI MEDIA
ROOM NO. 506, LTD.,
AAYAKAR BHAVAN, A-37, SECTOR-60,
LAKSHMI NAGAR, NOIDA, UP
(PAN: AACCT6185G)
DISTRICT CENTRE, NEW
DELHI
(APPELLANT) (RESPONDENT)
Department by : Sh. Sameer Sharma, Sr. DR
Assessee by : None A's
Date of Hearing : 25-9-2014
Date of Order : 29-9-2014
ORDER
PER H.S. SIDHU : JM
This appeal by the Revenue is directed against the Order of the Ld.
Commissioner of Income Tax (Appeals)-XXX, New Delhi dated 14.4.2013
pertaining to financial year 2008-09.
2. The grounds raised read as under:-
"1. The order of the Ld. CIT(A) is perverse and erroneous on the
facts and circumstances of the case. As per sub-section (1) of
section 246(A) of the I.T. Act, an assessee or any deductor
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ITA NO. 3556/Del/2013
aggrieved by any of the orders mentioned in the impugned
section can file an appeal before CIT(A).
2. The Ld. CIT(A) has failed to appreciate that in the order
passed u/s. 201(1) / 201(1A) of the I.T. Act the AO has merely
refer the matter of initiation of penalty proceedings u/s.
272A(2)K of the I.T. Act for not filing the quarterly returns with
in due date to JCIT, Range-51, Delhi. Therefore, the assessee
should not have been aggrieved by such reference of the
penalty which is pending for adjudication before JCIT,
Range-51, Delhi.
3. The Ld. CIT(A) has erred in deciding the issue of penalty to be
levied 272A(2)(k) of the I.T. Act which was not the subject
matter of order passed u/s. 201(1)/201(A) of the I.T. Act
against which appeal has been filed by the assessee.
4. The Ld. CIT(A) has further erred in deciding the appeal u/s.
250 of the I.T. Act which was not at all admissible as per
provisions of section 246A of the I.T. Act. Therefore, the
order of the Ld. CIT(A) may kindly be set aside.
5. The appellant craves leave to add, alter or amend any of the
grounds of appeal at the time of hearing."
3. The facts of the case are not in dispute by both the parties, therefore,
need not repeated here for the sake of convenience.
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4. Assessing Officer vide his order dated 25.3.2009 passed under section
201(1)/201(1A) of the I.T. Act, 1961 has computed the total tax liability payable
of the company of Rs. 1,91,41,614/- as under:-
S.NO. Amount of TDS Interest u/s. Interest u/s. Total liability
deducted but not 201(1A), upto 201(1A) w.e.f. payable.
deposited as per the date of November,
trial balance filed survey (as per 2008 to
w.e.f. 1.4.2008 survey report) 24.3.2009
to 31.12.2008
1. Rs. 1,71,95,823 Rs. 10,86,000 Rs. 8,59,791 Rs. 1,91,41,614
AO further initiate the penalty proceedings u/s. 272A(2)(k) of the I.T. Act
for not filing the quarterly returns in due time was being referred to the JCIT, R-
51, New Delhi.
5. Against the aforesaid order dated 25.3.2009 passed by the AO u/s.
201(1)/201(1A) of the I.T. Act, 1961, assessee appealed before the Ld. First
Appellate Authority, who vide impugned order dated 14.3.2013 has allowed
the appeal of the assessee.
6. Aggrieved by the Ld. First Appellate Authority aforesaid order dated
14.3.2013, Revenue preferred an appeal before us.
7. During the hearing Ld. DR relied upon the order of the Assessing Officer
and reiterated the contention raised in the grounds of appeal filed by the
Department.
8. None appeared on behalf of the assessee.
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9. Upon hearing the Ld. DR and perusing the records, we are of the opinion
that the appeal can be decided exparte qua assessee. We find that Ld. CIT(A)
with regard to issue credit to the taxes of Rs. 36,70,255/- and interest
calcuations has opined as under:-
"Paid challans are verified and crdit of taxes paid to be
allowed."
9.1 We also find that with regard to issue TDS payable has opined that the
challans of the taxes paid of the final corrected demand has been verified and
recovered / deposited amount to be duly credited in the respective sections as
per the detail. No demand oustanding. Therefore, ld. CIT(A) directed the AO
to recalcualute the interest liablity and give the credit of the taxes paid.
9.2 We also find that with regard to penalty intiation u/s. 272A(2)(k) of the I.T.
Act, 1961, Ld. CIT(A) found assessee's contention correct in respect of demand
rasied by the AO, it was partly paid before the passing of the order dated
25.3.2009 by the AO and balacne demand has been paid on or before 31st
March, 2010 which has been verified during course of hearings. There is no
demand outstanding. The penalty proceedings initiated u/s. 272(2)(k) in the
order u/s 201(1)/(1A) are accordingly dropped.
9.3 We find that action of initiation of penalty u/s. 272(2)(k) by the
Assessing Officer is too premature and not sustainable in the eyes of law.
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10. In the background of the aforesaid discussions, we find no infirmity in the
order of the Ld. CIT(A). Accordingly, we uphold the order of the Ld. CIT(A).
11. In the result, the Appeal filed by the Revenue stands dismissed.
Order pronounced in the Open Court on 29/9/2014.
Sd/- Sd/-
[J.S. REDDY] [H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date 29/9/2014
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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