Income Tax Appellate Tribunal - Delhi
Bsc C&C; (Jv), New Delhi vs Acit Circle-62(1), New Delhi on 22 November, 2019
आयकर अपील य अ धकरण, द ल यायपीठ "श
ु वार-ई", द ल म
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'FRIDAY-E', NEW DELHI
सु ी सष
ु मा चावला, या यक सद!य एवं ी $शांत मह'ष(, लेखा सद!य के सम+
BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER &
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
!थगन अपील सं./S.A.No.1050/Del/2019
In
आयकर अपील सं. / ITA No.8099/Del/2019
नधा(रण वष( / Assessment Year 2007-08
BSC C & C (JV),
74, Hemkunt Colony,
Opp. Nehru Place, New Delhi-110048.
PAN-AADFB8115G ..........अपीलाथ0/Appellant
vs
The ACIT,
Circle-62(1), New Delhi. ............. $1यथ0 / Respondent
अपीलाथ0 क2 ओर से / Appellant by : Sh. Ajay Vohra, Sr.Adv.,
Sh. Rohit Jain, Adv. & Ms. Deepashree Rao, CA
$1यथ0 क2 ओर से / Respondent by : Sh. C.P.Singh, Sr.DR
सन
ु वाई क2 तार ख / घोषणा क2 तार ख /
Date of Hearing : 22.11.2019 Date of Pronouncement: 22.11.2019
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
The present stay application is moved by the applicant against the recovery of outstanding demand arising out of levy of penalty u/s 271(1)(c) of the Act at Rs.5.99 crores.
2
2. The Ld.AR for the applicant pointed out that the quantum addition was made in the present case was on account of disallowance of additional depreciation u/s 32(1)(iia) of the Act. He further stated that the applicant was a Joint Venture company engaged in road construction material and was manufacturing readymix concrete material. In the original assessment made u/s 143(3) of the Act, the said additional depreciation was allowed to the applicant; however, in the re-assessment proceedings, the same was withdrawn. He pointed out that the appeal against the quantum additions is pending before the Tribunal. It was the case of the Ld.AR that the penalty for concealment of income has been levied on both the limbs of section 271(1)(c) of the Act and even the notice issued on both limbs u/s 271(1)(c) of the Act. It was brought to our notice that similar penalty levied for the preceding year was deleted in the case of the applicant. The Ld.AR for the applicant further stated that even the notice issued for re- assessment was beyond the time limit and on merits also, the applicant was entitled to the claim of additional depreciation, as held by Hon'ble Kerala High Court in Cherian Varkey Construction Co.Pvt.Ltd. vs Union of India, 406 ITR 262. He fairly admitted that Tribunal in applicant's own case while deciding the appeal for Assessment Year 2009-10 had disallowed the claim of the applicant against which the appeal was admitted by the Hon'ble Delhi High Court. Since the issue on merits was pending before the Hon'ble High Court, then the question which arises is whether levy of penalty on such facts is justified or not. It was also pointed out by the Ld.AR for the applicant that one of the partners of the Joint Venture had 3 filed proceedings under the IBC and even the bank accounts of the applicant are attached by the Resolution Panel. In such facts, he stated that the recovery of the outstanding demand to be stayed in entirety. He also pointed out that the applicant had already deposited Rs.90 lakhs against the outstanding demand.
3. The Ld. DR for the Revenue strongly opposed the contentions of the Ld.AR for the applicant and pointed out that several demands were outstanding against the applicant. He also pointed out that the issue has been decided by the Tribunal against the applicant in Assessment Year 2009-10.
4. On the perusal of record and after hearing both the authorized representatives, the issue which arises under present stay application is against the recovery of outstanding demand arising on account of penalty levied u/s 271(1)(c) of the Act at Rs.5.99 crores. The said penalty has been levied consequent to the quantum addition made on account of disallowance of additional depreciation claimed by the applicant u/s 32(1)(iia) of the Act on the machinery used by the applicant for manufacturing ready mix concrete material. The said additional depreciation was allowed to the applicant in the original round of assessment proceedings, but reassessment proceedings were initiated and the said additional depreciation was withdrawn. The Ld.AR for the applicant has pointed out that on quantum the issue prima facie is in favour of the applicant of the appeal is pending before the Tribunal. He also pointed out that though the Tribunal in Assessment Year 2009-10 had 4 disallowed the claim of additional depreciation but he Hon'ble High Court has admitted the appeal and also now the issue stands covered by the decision of Hon'ble Kerala High Court in Cherian Varkey Construction Co.Pvt.Ltd. vs Union of India (supra). The case of the assessee is that where the issue is debatable and where substantial question of law has been framed then no penalty is leviable. He also pointed out that the levy of penalty u/s 271(1)(c) of the Act in the present case suffers from infirmities. We are of the view that in the above said facts and circumstances, the applicant has a prima facie case in its favour as far as granting stay against recovery of outstanding demand is concerned. We find against the outstanding demand of Rs.5.99 crores, sum of Rs.90 lakhs has been paid by the applicant on 17.03.2017. Accordingly, we grant stay against the recovery of outstanding demand for a period of 180 days or till the disposal of appeal, whichever is earlier. The appeal is fixed for hearing on out of turn basis on 16.12.2019 for which no separate notice shall be issued to both the parties. No frivolous adjournments would be sought by either of the parties.
5. In the result, the stay application filed by the assessee is allowed.
Order pronounced in the open court on 22nd day of November, 2019.
Sd/- Sd/-
(PRASHANT MAHARISHI) (SUSHMA CHOWLA)
लेखा सद!य/ACCOUNTANT MEMBER या यक सद!य/JUDICIAL MEMBER
द ल / दनांक Dated : 22nd November, 2019.
* Amit Kumar *
5
आदे श क2 $ त6ल'प अ7े'षत/Copy of the Order is forwarded to :
1. अपीलाथ0 / The Appellant
2. $1यथ0 / The Respondent
3. आयकर आय9 ु त(अपील) / The CIT(A)
4. म< ु य आयकर आय9 ु त / The Pr. CIT
5. 'वभागीय $ त न ध, आयकर अपील य अ धकरण, द ल / DR, ITAT, Delhi
6. गाड( फाईल / Guard file.
ु ार/ BY ORDER, आदे शानस स1या'पत $ त //True Copy// सहायक रिज!Bार, आयकर अपील य अ धकरण , द ल Assistant Registrar, ITAT, Delhi