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ITO, ward 51(5), Room no. 506, aayakar bhavan, lakshmi nagar, district centre, new delhi Vs. M/s triveni media ltd., a-37, sector-60, noida, up
September, 30th 2014
                                                              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

                                        1
                                                               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.




                                        2
                                                               ITA NO. 3556/Del/2013


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.


                                         3
                                                                  ITA NO. 3556/Del/2013


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.

                                          4
                                                               ITA NO. 3556/Del/2013


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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