IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `E' NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
I.T.A .Nos. 4957& 4958/Del/2016
(ASSESSMENT YEARS - 2005-06 & 2006-07)
M/S MAGNUM STEELS LTD. vs DCIT, CC-16,
10, ESSEL HOUSE, NEW DELHI
ASAF ALI ROAD,
NEW DELHI
PAN No. AADCM6400E)
(APPELLANT) (RESPONDENT)
Appellant by Shri Rajiv Saxena, Adv. & Sh. Shyam
Sunder, A.R.
Respondent by Ms. Rinku Singh ,Sr. DR.
ORDER
PER H.S. SIDHU, JM
These appeals filed by the Assessee are directed against the
respective Orders of the Ld. CIT(A)-25, New Delhi relevant to
assessment years 2005-06 & 2006-07. Since the issues involved in
these appeals are common and identical, hence, they were heard
together and are being consolidated by this common order for the
sake of convenience. The sole issue involved in these appeals is
relating to confirmation of levy of penalty of Rs. 4,24,12,311/- and
Rs. 12,36,00,074/- made u/s. 271(1)(c) of the Act respectively.
2. Facts narrated by the revenue authorities are not disputed by
both the parties, hence, the same are not repeated here for the sake
of convenience.
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3. At the time of hearing, Ld. Counsel of the Assessee, has
stated that ITAT vide its common order dated 18.8.2017 in quantum
appeal Nos. 1342, 1343 & 2004/Del/2013 & 3176 & 3177/Del/2014
(Ayrs. 2005-06 to 2007-08) has deleted all the additions. In this
behalf he filed the copy of the Tribunal's Order dated 18.8.2017 in
assessee's own case and he requested that in both the appeals the
penalty in dispute may be deleted
4. On the other hand, Ld. DR relied upon the orders of the
authorities below.
5. We have carefully considered the submissions and perused the
records. We find that in assessee's own case the ITAT vide its
common order dated 18.8.2017 in quantum appeal Nos. 1342, 1343
& 2004/Del/2013 & 3176 & 3177/Del/2014 (Ayrs. 2005-06 to 2007-
08) has deleted the additions vide para no. 50, 52 & 70 at page no.
94 & 159 of the order. For the sake of convenience, we are
reproducing the relevant finding of the Tribunal as under:-
"50....The issue is involved only in ITA No.
1342/Del/2013 for the assessment year 2005-06.
After examining the facts of the case, we find that
assessment in this case was originally framed u/s.
143(3) of the Act specifically after examining the
investment and Assessing Officer did not find any
error and completed the assessment after
accepting the investments. these investments have
been declared in the books of accounts and the
contention of the assessee is that it has filed all
the details such as the confirmation, company y
master data as proof of address, PAN, Auditor's
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Report alognwith balance sheet, ITR, MOA/AOA,
share application form etc., and the AO did not
find any material adverse to the evidences
furnished by assessee. It was also submitted that
notices issued were served to the shareholders
and AO apart from issuing notices to the
shareholders did not make any further enquiry /
efforts to bring any material contrary to the
evidences furnished by assessee, as such,
assessee submitted that addition made is not
sustainable. On the other hand, Ld. CIT(DR)
placed reliance on the orders of the authorities
below. Since we have already dealt with the
legal issue in favour of the assessee by directing
the Assessing Officer to delete the additions made
in the assessment framed under section 153A in
absence of incriminating material during the
search, following the same the addition in
question in absence of incriminating material and
non-abatement of assessment already framed
under section 143(3) before the date of search,
does not stand and directed to be deleted."
"...52. Since we have already dealt the legal
issue in favour of the assessee by directing the
AO to delete the additions made by the
assessment framed u/s. 153A of the Act for the
aforesaid assessment year, in absence of
incriminating material found during search and
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in absence of abatement of assessment order
already framed before the search, as such, this
issue does not survive for adjudication and
stands to be deleted.."
..."70. In view of above discussed binding
judicial precedents, evidences produced by
assessee, absence of adequate inquiry conducted
by the Ld. AO to prove those documents false,
absence of any incriminating material during the
search and mainly where the Ld. AO himself
treated the shares sale transaction as short term
capital gain and speculation income which itself
shows that there is a transfer of capital assets by
the assessee or there is trading in shares with
delivery, we are unable to uphold the addition
made. In the result, addition made on account of
Long Term Capital gain is directed to be
deleted."
6.1 Keeping in view of the facts and circumstances of the case, we
find that the additions on which the penalty in dispute was levied,
has already been deleted by the ITAT in quantum appeals, i.e. in
ITA Nos. 1342, 1343 & 2004/Del/2013 & 3176 & 3177/Del/2014
(Ayrs. 2005-06 to 2007-08) in assessee's own case as aforesaid,
hence, the penalty in dispute will not survive on the additions in
dispute. Accordingly, we delete the penalty in dispute in both the
appeals.
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7. In the result, both the appeals filed by the Assessee stand
allowed.
Order pronounced on 05.02.2019.
Sd/- Sd/-
(PRASHANT MAHARISHI) (H.S. SIDHU)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 05-02-2019
SR BHATNAGAR
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI
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