Ita v. Cit"(2007) 289 Itr 83. Hence The Instant Appeal By Thetevenue

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No.667 of 2008(0&M)Date of decision: 21.8.2014 Commissioner of Income Tax, Faridabad Vs, ..-.-- Appe M/s Alpha Toyo Limited, Plot No.9H, Sector 6, Faridabad. .....Responde CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTALHON’BLE MR. JUSTICE FATEH DEEP SINGH Present: Ms. Tejinder K.Joshi,Advocatefor the appellant.Mr. Avneesh Jhingan, Advocate for the respondent. Ajay Kumar Mittal, J. 1,This appeal has been preferred by the revenueunder Section260A of the Income Tax Act, 1961 (in short, “the Act’) against the orderdated 29.11.2008, Annexure IV passed by the Income Tax appellate Tribunal Delhi Bench 'H' Delhi In ITA No.1571/DEL/2007 for the assessment year1993-94 claiming following substantial questions of law: 1) Whether the Hon'ble ITAT was right in law in confirminthe order of the learned CIT(A) in deleting the penalty leviedby the Assessing Officer under Section 271(1)(c) of theIncome lax Act, 1961 amounting toa9,32,200/- in respectof various additions in assessee's income which wereconfirmed by the Hon'ble ITAT vide its order dated21 122008 in ITA No.4085/Del/97> i1) Whether, on the facts and in the circumstances of the casethe Hon'ble ITAT is right in confirming the deletion ofpenalty under section 271(1)(c) by relying on the Apex Court decision in the case of Virtual Soft Systems Limited, 289ITR 83 (SC) as the issue has now been finally resolved bythe larger bench of the Hon'ble Supreme Court in thedecision dated 18.8.2008 in the case of CIT-I, Ahmedabadvs. Gold Coin Health Food (P) Limited in Civil AppealNo.5065 of 2008 (arising out of SLP No.4379 of 2007) withC.A.No.5066/2008 @ SLP No.14785/2007? 111) That the tax effect in this case isTL9,32,000/- which is abovethe monetary limits prescribed by the Board's instructionNo.5 of 2008 dated 15.5.2008 issued under Section 268A ofthe Income Tax Act, 1961 for filing appeal before theHon'ble High Court? 2A few facts relevant for the decision of the controversyinvolved as narrated in the appeal may be noticed. The assessee is acompany engaged in the business of manufacture of automobile parts. Thereturn of income was filed declaring a loss of —Ly1,81,11,440/- on31.12.1993. It included brought forward losses of <a1,19,23,556 of earlieryears. The return was revised to a loss ofan60,60,037/- on 9.2.1994,Assessment under Section 143(3) of the Act was completed on 27.2.1996 atloss of.=a23,50,410/- which was inter alia increased to=a35,25,166/- aftergiving appeal effect to the order of the Tribunal in appeal Nos.4158/Del/972and 4085/Del/97 dated 22.7.2005. Penalty proceedings under Section 271(1)(c) of the Act were initiated at the time of assessment and therefore, theAssessing officer after receipt of Tribunal's order proceeded to finalise thepenalty proceedings and accordingly as per reasons recorded in his penaltyorder worked out the penalty on the alleged furnishing of inaccurateparticulars in respect of|418,01,213. The Assessing officer vide order dated22.3.2006, Annexure II, imposed penalty of“a9,32,200/-. Aggrieved by theorder, the assessee filed appeal before the Commissioner of Income TaxGURBAX SINGH2014.10.07 12:20I attest to the accuracy andintegrity of this documentHigh Court Chandigarh ITA No.667 of 2008 (O&M) (Appeals) |CIT(A)]. Vide order dated 31.1.2007, Annexure LI, the CIT(A)allowed the appeal and deleted the penalty of a9,32,200/- levied by theAssessing officer. Dissatisfied with the order, the revenue filed appealbefore the Tribunal. Vide order dated 29.1.2008, Annexure IV, the Tribunaldismissed the appeal following the judgment of the Apex Court inVirtualSoft Systems vs. CIT"(2007) 289 ITR 83. Hence the instant appeal by theTEVENUE. 3,We have heard learned counsel or the parties and perused the record. 4It was not disputed by the learned counsel for the parties that inview of the decision of the Apex Court inCommussioner ofIncome Tax vs. ITA No.667 of 2008 (O&M) (Appeals) |CIT(A)]. Vide order dated 31.1.2007, Annexure LI, the CIT(A)allowed the appeal and deleted the penalty of a9,32,200/- levied by theAssessing officer. Dissatisfied with the order, the revenue filed appealbefore the Tribunal. Vide order dated 29.1.2008, Annexure IV, the Tribunaldismissed the appeal following the judgment of the Apex Court inVirtualSoft Systems vs. CIT"(2007) 289 ITR 83. Hence the instant appeal by theTEVENUE. 3,We have heard learned counsel or the parties and perused the record. 4It was not disputed by the learned counsel for the parties that inview of the decision of the Apex Court inCommussioner ofIncome Tax vs. Gold Coin Health Food P.Limtted,(2008) 304 ITR 308, the order passedby the Tribunal was unsustainable. It was further urged that the order of theTribunal be set aside and the matter be remanded to it to decide afresh. 5In view of the above, the appeal is allowed. The impugnedorder passed by the Tribunal dated 29.1.2008, Annexure IV is set aside andthe matter is remanded to the Tribunal to decide it afresh, after affording anopportunity of hearing to the parties in accordance with law. (Ajay Kumar Mittal)Judge August 21, 2014 (Fateh Deep Singh)Judge "oS: