Appell v. M/S Nectar Lifescience Limited, (

ITA No. 274 of 2017 1 CHANDIGARH. ITA No. 274 of 2017Date of decision: 28.08.2017 Pr. Commissioner of Income Tax (Central), Gurgaon ...---Appell Vs. M/s Nectar Lifescience Limited, (through its Managing Director) 1596,Bhagirath Place, Delhi-110006| ...Respondent CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTALHON’BLE MR. JUSTICE AMIT RAWAL Present: Mr. Rajesh Sethi, Senior Standing Counsel with Mr. Tushar,Gera, Advocate for the appellant-revenue. Ajay Kumar Miuittal, 1]The appellant-revenue has filed the instant appeal under|Section 260A of the Income Tax Act, 1961 (in short, “the Act”) against the order dated 30.11.2016, Annexure A.5, passed by the Income TaxAppellate Tribunal, Delhi Bench ‘F’, New Delhi (in short, “the Tribunal’) in ITA No. 2680/DEL/2010, for the assessment year 2001-02, claiming following substantial questions of law:- (1)“Whether on the facts and in the circumstances of the case, inview of Explanation (11) of Section 271(1)(c) of Income TaxAct the onus to prove that there was no fault or neglect infiling the correct income was not on assessee? view of Explanation (11) of Section 271(1)(c) of Income TaxAct the onus to prove that there was no fault or neglect infiling the correct income was not on assessee? (11)Whether on the facts and in the circumstances of the case,the finding recorded by the Assessing Officer in quantumproceedings establishing the furnishing of inaccurateparticulars of income by assessee which was affirmed by theCIT(A) and further affirmed by ITAT has not beenthe finding recorded by the Assessing Officer in quantumproceedings establishing the furnishing of inaccurateparticulars of income by assessee which was affirmed by theCIT(A) and further affirmed by ITAT has not been considered appropriately by the ITAT by passing theimpugned order dated 30.11.2016?impugned order dated 30.11.2016? (111)Whether on the facts and in the circumstances of the case, thewrong and inaccurate claim made by assessee under SectionSOQOHHC regarding working of business profits can be said tbe a contentious issue?wrong and inaccurate claim made by assessee under SectionSOQOHHC regarding working of business profits can be said tbe a contentious issue? (iv)Whether on the facts and in the circumstances of the case, inhand, once it is seen that the disallowance of gratuity amountwas found to be against the provisions of law, the impositionof penalty was not bound to follow as a direct consequencethereof?hand, once it is seen that the disallowance of gratuity amountwas found to be against the provisions of law, the impositionof penalty was not bound to follow as a direct consequencethereof? (v)Whether on the facts and in the circumstances of the case, in)hand once the claim made under Section 43B was ex-facie|bogus, the view point of ITAT in deleting the penalty on thiscount 1s proper or not?hand once the claim made under Section 43B was ex-facie|bogus, the view point of ITAT in deleting the penalty on thiscount 1s proper or not? (v1)Whether on the facts and in the circumstances of the case, inhand the view point of the ITAT taken in impugned order isneither sustainable in the eyes of law nor maintainable in thelight of the facts and circumstances of the case and is notperverse in nature?hand the view point of the ITAT taken in impugned order isneither sustainable in the eyes of law nor maintainable in thelight of the facts and circumstances of the case and is notperverse in nature? (vil)Whether on the facts and in the circumstances of the case, in|hand the view point of the ITAT while passing the|impugned order is not non-speaking in nature?”hand the view point of the ITAT while passing the|impugned order is not non-speaking in nature?” | (v1)Whether on the facts and in the circumstances of the case, inhand the view point of the ITAT taken in impugned order isneither sustainable in the eyes of law nor maintainable in thelight of the facts and circumstances of the case and is notperverse in nature?hand the view point of the ITAT taken in impugned order isneither sustainable in the eyes of law nor maintainable in thelight of the facts and circumstances of the case and is notperverse in nature? (vil)Whether on the facts and in the circumstances of the case, in|hand the view point of the ITAT while passing the|impugned order is not non-speaking in nature?”hand the view point of the ITAT while passing the|impugned order is not non-speaking in nature?” | |A few tacts relevant for the decision of the controversy|involved as narrated in the appeal may be noticed. Assessment in this casewas completed under Section 143(3) of the Act at a total income of|z4,43,44,.621/- by making addition of<9,50,087/- under Sections 43B,|36(1)(va) and 2(24)(x) of the Act,y1,37,286/- on account of selling and|distribution expenses,y61,859/- on account of depreciation of pollution ITA No. 274 of 2017 3 and control equipment,z4,00,485/- on account of gratuity and|z50,23,687/- under Section SOHHC of the Income Tax Act. The assesseefiled an appeal before the Commissioner of Income Tax Appeals |CIT(A)]. The CIT(A) confirmed the additions made by the Assessing Officer. The)Assessee filed an appeal before the Tribunal. Vide order dated 29.07.2008,Annexure A.2, the Tribunal dismissed the appeal and confirmed theadditions made by the Assessing Officer. Penalty order under Section2/1\1(1)(c) was passed by Deputy Commissioner of Income Tax, Circl13(1), New Delhi, i.e. the Assessing Officer, imposing penalty of|223,41,325/-, vide order dated 27.03.2009, Annexure A.3. Agegrieved by thepenalty order passed by the Assessing Officer, the assessee filed an appealbefore the CIT(A), New Delhi. Vide order dated 8.3.2010, Annexure A.4,the CIT(A) dismissed the appeal and confirmed the penalty. Still notsatisfied, the assessee filed an appeal before the Tribunal at New Delhi.|Vide order dated 30.11.2016, Annexure A.5, the Tribunal allowed theappeal and deleted the penalty following the decision of the Apex Court in|CIT Ahmedabad Vs. Reliance Petroproducts Private Limited(2010) 322ITR 158. Hence, the instant appeal by the appellant-revenue. onWe have heard learned counsel for the appellant-revenue. _4The issue that arises for consideration in this appeal is that|when the Assessing Officer who passed the assessment order and the)penalty order was based at New Delhi and the first appeal was adjudicated|by the CIT(A), New Delhi and the second appeal by the Tribunal at New|Delhi, whether the appeal under Section 260A of the Act before this Courtwould be maintainable. 5 The matter is no longer res integra. This Court in|Commissioner of Income Tax (Appeals), Gurgaon Vs. M/s Parabolic Drugs Limited,ITA No.49 of 2012 decided on 11.10.2012, following the| Division Bench judgment of this Court inCommissioner ofIncome TaxFaridabad Vs. M/s Motorola [India LimiteITA No. 44 of 2005 decided on 03.10.2007 had held as under:- “Accordingly, the present appeal is dismissed by holding that|this court has no territorial jurisdiction to adjudicate upon the|lis over an order passed by the Assessing Officer at New|Delhi. Consequently, the appeal is returned to the Revenue for|filing before the competent Court ofjurisdiction in accordancewith law.” 6 In view of the above, present appeal is dismissed as this Courthas no territorial jurisdiction to adjudicate upon the lis over an order passedby the Assessing Officer at New Delhi. Consequently, the appeal isreturned to the revenue for filing before the competent court ofjurisdiction|in accordance with law. August 28, 2017Whether speaking/reasonedWhether reportable (Ajay Kumar Miuittal Judge (Amit Rawal) Judge Yes. Yes