Subject: He further stated that since the issue is purely legal based on facts already on record, the assessee
Referred Sections:
Section 271(1)© of the Act
IN THE INCOME TAX APPELATE TRIBUNAL
DELHI BENCH "A": NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA No. 367/Del/2016
A.Y. : 2008-09
COMMITTED TRADING PVT. LIMITED, Vs. ITO, WARD 3(3)
SHOP NO. 319, 3RD FLOOR, NEW DELHI
VARDHMAN FORTUNE MALL,
G.T. KARNAL ROAD,
DELHI 110 033
(PAN: AACCC4073A)
(Appellant) (Respondent)
Assessee by : Sh. Rohit Jain, Adv. & Ms. Shaily
Gupta, CA
Department by : Smt. Naina Soin Kapil, Sr. DR.
ORDER
PER H.S. SIDHU, JM
This appeal filed by the Assessee is directed against the Order dated
21.10.2015 of the Ld. Commissioner of Income Tax (Appeals)-2, New Delhi
pertaining to assessment year 2008-09.
2. The grounds of appeal raised in the assessee's appeal read as under:-
1. On the facts and in the circumstances of the case and in
law, the Id. CIT ( A) erred in upholding the levy of penalty
of 47,43,320/- u/s 271(l)(c) of the Income tax Act,1961
merely on the basis of presumptions and suspicions,
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ignoring the various judicial pronouncements and material
on record.
2. On the facts and in the circumstances of the case and in
law, the Id. CIT ( A) erred in upholding the levy of penalty
of 47,43,320/- u/s 271(l)(c) of the Income tax Act,1961on
the ground that no convincing/satisfactory explanation has
been filed by the assessee and that the assessee has failed
to prove that there was no fraud or neglect in filing the
return.
That the above grounds of appeal are without prejudice to
each other.
That the appellant craves leave to add, alter, amend or
withdraw any ground of appeal either before or at the time
of hearing of this appeal.
3. Assessee has also filed separate Application for admission of additional
grounds in Appeal in which the assessee has stated that in view of the
settled decision in the case of NTPC 229 ITR 383 (SC), (legal ground can be
raised for first time in collateral and second round also). He further stated
that since the issue is purely legal based on facts already on record, the
assessee may be allowed to raise the following additional ground in the
interest of natural justice:-
"3. That on facts and circumstances of the case and in
law, the impugned penalty of Rs. 47,43,320/- levied under
section 271(1)© of the Act is without jurisdiction, illegal
and bad in law.
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3.1 That the AO erred on facts and in law in not
specifying whether the penalty is levied for concealment
of income or for furnishing of inaccurate particulars of
income, and interchangeably applying the two concepts
while imposing penalty under section 271(1)© of the Act."
3.1 Ld. Counsel of the Assessee requested that keeping in view of the
decision of the Hon'ble Supreme Court of India in the case of NTPC 229 ITR
383 (SC) (Supra), the additional grounds raised by the assessee in all the
three appeals may be admitted and decided first.
4. On the contrary, Ld. DR strongly opposed the admission of additional
grounds (legal) raised by the assessee.
5. After hearing both the parties as well as perusing the additional
grounds alongwith the orders passed by the Revenue Authorities, we are of
the considered view that in view of the decision of the Hon'ble Supreme
Court of India in the case of NTPC Limited 229 ITR 383 (Supra), the
additional grounds raised by the assessee are purely legal ground and did
not require fresh facts which is to be investigated and goes to the root of
the matter. In the interest of justice, we admit the aforesaid additional
grounds. We find that since these additional ground were not raised before
the Ld. CIT(A), hence, the same requires adjudication by the Ld. CIT(A),
therefore, in the interest of justice, we remit back the aforesaid additional
grounds to the file of the Ld. CIT(A) with the directions to decide the same
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afresh under the law, after giving adequate opportunity of being heard to
the assessee.
6. In the result, the appeal filed by the Assessee stands allowed for
statistical purposes.
Order pronounced on 10/05/2019.
Sd/- Sd/-
[PRASHANT MAHARISHI] [H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date: 10/05/2019
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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