ADIT (E), Inv. circle-I,, v. Aparna Ashram,,

ITA 1785/DEL/2006 | misc
Pronouncement Date: 19-02-2010 | Result: Allowed

Appeal Details

RSA Number 178520114 RSA 2006
Assessee PAN YASIN2005A
Bench Delhi
Appeal Number ITA 1785/DEL/2006
Duration Of Justice 3 year(s) 9 month(s)
Appellant ADIT (E), Inv. circle-I,,
Respondent Aparna Ashram,,
Appeal Type Income Tax Appeal
Pronouncement Date 19-02-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 19-02-2010
Date Of Final Hearing 09-02-2010
Next Hearing Date 09-02-2010
Assessment Year misc
Appeal Filed On 19-05-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT & SHRI I.P. BANSAL JUDICIAL MEMBER ITA NOS. 1287 TO 1289 /DEL/2006 ASSESSMENT YEAR: 1982-83 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 1503 TO 1505 /DEL/2006 ASSESSMENT YEAR: 1983-84 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 1785/D/06 ASSESSMENT YEAR: 1983-84 ADIT (E) INVESTIGATION CIRCLE- I NEW DELHI. VS. M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO. 311/D/06 (IN ITA NO. 1785/D/06) ASSESSMENT YEAR: 1983-84 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 2 ITA NOS. 2266 & 2267/D/06 ASSESSMENT YEAR: 1986-87 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 2295 & 2296/D/06 ASSESSMENT YEARS: 1991-92 & 1992-93 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 2317 TO 2320/D/06 ASSESSMENT YEARS: 1986-87 TO 1987-88 & 1989-90 TO 1 990-91 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 2576/D/06 ASSESSMENT YEAR: 1987-88 M/S APARNA ASHRAM A-50 FRIENDS COLONY (EAST) NEW DELHI. VS. ASSTT. DIRECTOR OF INCOME TAX (E) INVESTIGATION CIRCLE-I NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. BANU K. GIRI ADV. RESPONDENT BY: SH. B. KISHORE SR. DR ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 3 O R D E R PER BENCH ALL THESE APPEALS ARE FILED BY THE ASSESSEE IN RE SPECT OF LEVY OF PENALTY UNDER VARIOUS SECTIONS OF I.T. ACT 1961 (A CT) EXCEPT ITA NO. 1785/D/06 WHICH IS DEPARTMENTAL APPEAL AGAINST DELE TION OF PENALTY U/S 273. THE ASSESSEE HAS FILED CROSS OBJECTION IN SUP PORT OF THE ORDER OF CIT(A) VIDE WHICH THE PENALTY U/S 273 WAS DELETED. THE DETAILS REGARDING THESE APPEALS ARE TABULIZED AS UNDER: - S.NO. ITA NO. A.Y. SEC. UNDER WHICH PENALTY IS IMPOSED AMOUNT OF PENALTY CIT(A) ORDER DATED 1. 1287/D/06 1982-83 271(1)(A) 52 69 742/- 20.01.06 2. 1288/D/06 1982-83 271(1)(B) 2 83 319/- 20.01.06 3. 1289/D/06 1982-83 271(1)(C) 29 00 000/- 20.01.06 4. 1503/D/06 1983-84 271(1)(A) 4 07 55 506/- 28.02. 06 5. 1504/D/06 1983-84 271(1)(B) 25 15 772/- 28.02.06 6. 1505/D/06 1983-84 271(1)(C) 2 52 00 000/- 28.02.0 6 7. 1785/D/06 (DEPARTMENTAL APPEAL) 1983-84 273 18 86 829/- 28.02.06 8. C.O. NO. 311/D/06 1983-84 273 18 86 829/- 28.02.06 9. 2266/D/06 1986-87 271(1)(B) 5 17 300/- 30.03.06 10. 2267/D/06 1986-87 271(1)(C) 52 00 000/- 24.03.06 11. 2295/D/06 1991-92 271(1)(C) 60 00 000/- 27.03.06 12. 2296/D/06 1992-93 271(1)(C) 62 00 000/- 27/03.06 13. 2317/D/06 1986-87 271(1)(A) 51 95 700/- 23.03.0 6 14. 2318/D/06 1987-88 271(1)(C) 55 00 000/- 24.03.06 15. 2319/D/06 1989-90 271(1)(C) 56 00 000/- 24.03.06 16. 2320/D/06 1990-91 271(1)(C) 65 50 000/- 28.03.06 17. 2576/D/06 1987-88 271(1)(A) 36 19 598/- 24.03.0 6 ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 4 2. AT THE TIME OF HEARING IT WAS BROUGHT TO OUR NO TICE BY THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE THAT APPEAL S IN QUANTUM IN RESPECT OF ALL THESE YEARS WERE CONSIDERED BY THIS TRIBUNAL AND THEY HAVE BEEN DECIDED VIDE ORDER DATED 30.11.09 IN ITA NOS. 3298 TO 3302 1550 TO 1552 1717 TO 1721/D/05 AND ITA NO. 800 & 8 01/D/08. HE HAS PLACED BEFORE US A COPY OF THE SAID ORDER. REFERRI NG TO THE SAID ORDER IT WAS POINTED OUT THAT THE ASSESSMENTS HAVE BEEN SET- ASIDE TO THE FILE OF AO. FOR THE SAKE OF CONVENIENCE THE SAID ORDER IN ITS ENTIRETY IS REPRODUCED BELOW: - ITA NO.3212 3298 3299 3300 3301 3302 1550 15 51 1552 1717 1718 1719 1720 1721/DEL/2005 AND 800 801/ DEL/2008 (ASSESSMENT YEARS 1979-80 1980-81 1981-82 1984-8 5 1988- 89 1993-94 1982-83 1983-84 1986-87 1987-88 19 89-90 1990-91 1992-93 1991-92 1981-82 AND 1984-85 RESP ECTIVELY) M/S. APARNA ASHRAM VS. ADIT E) A-50 FRIENDS COLONY (EAST) INV. CIRCLE I NEW DELHI. NEW DELHI (APPELLANTS) (RESPONDENTS) APPELLANT BY: S/SHRI SUBHASH DUTT M.K. GIRI SHREE PRAKASH SINHA ADVOCATES RESPONDENT BY: SHRI GAJANAND MEENA CIT DR PAN / GIR NO.1293-A ORDER PER BENCH: 1. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAI NST HE ORDER OF CIT(A)-VII NEW DELHI FOR THE ASSESSMENT YEARS 197 9-80 1980-81 1981-82 1984-85 1988-89 1993-94 1982-83 1983-8 4 1986-87 1987-88 1989-90 1990-91 1992-93 1991-92 1981-8 2 AND 1984- 85. I.T.A. NO. 800 & 801/DEL/2008 ARE THE APPEALS AGAINST THE CONFIRMATION OF PENALTY LEVIED U/S 271(1)(A) OF THE ACT. SHRI SUBHASH DUTT SHRI M K GIRI AND SHRI SHREE PRAKASH SINHA A DV. REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI GAJANAND MEENA CIT DR REPRESENTED ON BEHALF OF THE REVENUE. ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 5 2. THE ASSESSEE HAS ALSO RAISED TWO ADDITIONAL GROU NDS WHICH WERE IDENTICAL ADDITIONAL GROUNDS RAISED IN I.T.A. NO. 3 211 3212/DEL/2005 FOR THE ASSESSMENT YEARS 1977-78 AND 1979-80 WHICH HAD BEEN ADMITTED VIDE ORDER DATED 31.08.2007. AT THE TIME OF HEARING SHRI SHREE PRAKASH SINHA ADVOCATE SUBMITTED AN APPLICAT ION FOR ADJOURNMENT ON THE GROUND THAT HE WAS REPRESENTING M/S. APARNA ASHRAM UNDER THE AUTHORITY GIVEN TO HIM BY ONE SHRI LAXMAN CHAUDHARY AS THE PRESIDENT OF THE SOCIETY. IT WAS HIS SUBMISSION THAT WHEN THE APPEALS WERE FILED THE PRESIDENT AND THE PRINCIPAL OFFICER WAS MR. LAXMAN CHAUDHARY AND THE APPEAL HAS BEEN SIGNED BY SHRI MURLI CHAUDHARY WHO IS A MEMBER OF THE GENE RAL BODY AND NOT THE GOVERNING COUNCIL. IT WAS THE SUBMISSION B Y HIM THAT THE GENERAL BODY COMPRISES BY ALL THE MEMBERS OF THE SO CIETY AND THE GOVERNING COUNCIL IS ELECTED EVERY THREE YEARS FROM THE GENERAL BODY MEMBERS. IT WAS HIS FURTHER SUBMISSION THAT SHRI S UBHASH DUTT AND SHRI M. K. GIRI ADVOCATES HAD BEEN APPOINTED BY SH RI MURLI CHAUDHARY. IT WAS AGREED BY HIM THAT SHRI MURLI CH AUDHARY WAS A MEMBER IN THE GENERAL BODY. IT WAS THE FURTHER SUB MISSION THAT HE DID NOT HAVE ANY PAPERS IN RELATION TO THE APPEAL A ND HE WOULD NOT BE ABLE TO ASSIST THE COURT IN RESPECT OF THE APPEA LS AND AN ADJOURNMENT MAY BE GRANTED. SHRI SUBHASH DUTT SUBM ITTED THAT THE APPEALS HAVE BEEN FILED BY SHRI MURLI CHAUDHARY AND SHRI MURLI CHAUDHARY AS A MEMBER HAD THE AUTHORITY TO GIVE HIM VAKALATNAMA. HE FURTHER SUBMITTED THAT THE DISPUTE AS TO WHO WAS THE PRESIDENT AND WHO WAS A MEMBER OF THE GOVERNING COUNCIL IS N OT THE ISSUE WHICH CAN BE LOOKED INTO BY THIS TRIBUNAL. HE SUBM ITTED THAT HE WAS READY TO ARGUE THE MATTER. IT WAS HIS SUBMISSION T HAT THE ADDITIONAL GROUND WAS LIABLE TO BE ADMITTED IN LINE WITH THE D ECISION OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSM ENT YEAR 1977- 78 AND 1979-90 IN I.T.A. NO. 3211 3212/DEL/2005 DA TED 31.08.2007. IT WAS ALSO SUBMITTED THAT THE COORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE FOR THE ASSESS MENT YEAR 1994- 95 AND 1995-96 IN I.T.A. NO. 1839 AND 1840/DEL/2005 HAD SET ASIDE THE ASSESSMENT TO THE FILE OF THE A.O. TO RECOMPUTE D THE INCOME AFTER REQUISITION OF THE BOOKS AND OTHER RECORDS PE RTAINING TO THE ASSESSEE SOCIETY FROM THOSE IN-CHARGE VIDE ORDER DA TED 15.01.2007. ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 6 IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF A LL THESE APPEALS WERE RESTORED TO THE FILE OF THE A.O. FOR RE-ADJUDI CATION IN LINE WITH THE DECISION OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 1994-95 AND 1995-96 REFERRED TO SU PRA. IN REPLY THE LD. D.R. SUBMITTED THAT THE ASSESSEE SOCIETY HA S BEEN NON- COOPERATIVE IN THE ASSESSMENT PROCEEDINGS AND THIS HAS LEAD THE A.O. TO ESTIMATE THE INCOME OF THE ASSESSEE SOCIETY . HE VEHEMENTLY SUPPORTED THE ORDERS OF THE A.O. AND THE CIT(A). IN REJOINDER BOTH THE COUNSELS SHRI SUBHASH DUTT AND SHRI SHREE PRAKASH SINHA ADVOCATES SUBMITTED THAT THE ASSESSE E WOULD COOPERATE IN THE SET ASIDE PROCEEDINGS IF AN OPPORT UNITY IS GIVEN TO THEM. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE APPEALS HAVE BEEN FIELD AS EARLY AS IN 2005 AND ARE TREATED BY THIS TRIBUNAL AS OLD APPEALS THE REQUEST FOR ADJOURNMEN T AS FILED BY SHRI SHREE PRAKASH SINHA IS NOT ACCEDED TO. THIS IS ALS O BECAUSE SHRI SINHA DOES NOT HAVE ANY OF THE APPEAL PAPERS AND HA S CATEGORICALLY MENTIONED THAT HE WOULD NEED TIME TO STUDY THE FACT S. IT IS ALSO NOTICED THAT THE APPEALS HAVE BEEN FILED BY SHRI MU RLI CHAUDHARY AND AS PER THE PROVISIONS OF SECTION 140(E) THE PE RSON COMPETENT TO FILE THE APPEAL AND RETURN IS A PERSON COMPETENT TO SIGN THE APPEAL ALSO AND AS PER THE PROVISIONS OF SECTION 14 0(E) THE COMPETENT PERSON IS ANY MEMBER OF THE ASSOCIATION O R THE PRINCIPAL OFFICER. AS IT HAS BEEN ACCEPTED THAT SHRI MURLI C HAUDHARY IS A MEMBER OF THE SOCIETY OBVIOUSLY THE APPEALS FILED BY HIM WOULD HAVE TO BE ENTERTAINED. IT IS ALSO NOTICED THAT NO APPEAL HAS BEEN FILED BY SHRI LAXMAN CHAUDHARY ON BEHALF OF M/S. AP ARNA ASHRAM IN HIS STATUS AS THE PRESIDENT. IT IS ALSO NOTICED TH AT NO APPEAL HAS BEEN FILED BY ANYBODY CLAIMING TO BE THE; PRINCIPAL OFFICER OF THE ASSESSEE SOCIETY. IN THESE CIRCUMSTANCES THE ADJO URNMENT REQUEST AS MADE BY SHRI SHREE PRAKASH SINHA IS REJECTED AND THE APPEALS ARE BEING DISPOSED OFF. AS IT IS NOTICED THAT THE IDENTICAL ADDITIONAL GROUNDS IN RESPECT OF SEC. 2(31) AS RAISED BY THE A SSESSEE HAS BEEN ADMITTED IN THE ASSESSEES OWN CASE FOR THE AS SESSMENT YEARS 1977-78 AND 1978-79 REFERRED TO SUPRA ON SIMI LAR GROUNDS THE ADDITIONAL GROUNDS AS RAISED IN THESE APPEALS A RE ALSO ADMITTED. ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 7 4. IT IS NOTICED THAT IN THE ADDITIONAL GROUNDS ASS ESSEE HAS RAISED THE ISSUE THAT THE ASSESSEE DOES NOT FALL WITHIN THE DE FINITION OF A PERSON AS CONTAINED IN SECTION 2(31) OF THE ACT. IT IS FURTHER NOTICED THAT THE FACTS NECESSARY FOR DETERMINING TH E ANSWER TO THIS LEGAL QUESTION ARE ALSO NOT EMANATING FROM THE ASSE SSMENT ORDER AND THE ORDER OF LD. CIT(A). IT IS ALSO NOTICED TH AT THE ISSUE AS TO WHETHER THE ASSESSEE WOULD FALL WITHIN THE DEFINITI ON OF A PERSON AS CONTAINED IN SECTION 2(31) OF THE ACT AS AVAILABLE FOR THE RELEVANT ASSESSMENT YEAR HAVE ALSO NOT BEEN CONSIDERED BY TH E LOWER AUTHORITIES. 5. IT IS FURTHER NOTICED THAT THE BASIS FOR ESTIMAT ING THE INCOME OF THE ASSESSEE FOR EACH OF THE YEARS IS ALSO NOT EMANATIN G FROM THE ORDERS OF THE ASSESSING AUTHORITY OR THE CIT(A). I N THESE CIRCUMSTANCES WE ARE INCLINED TO SET ASIDE THE PRES ENT ASSESSMENT IN THESE APPEALS ALSO AND WE DO SO. IN THESE CIRCU MSTANCES THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A) AS CHA LLENGED IN THESE APPEALS ARE SET ASIDE FOR FRESH ADJUDICATION DE NOVO. THE ASSESSEE SHALL COOPERATE IN THE SET ASIDE ASSESSMEN T PROCEEDINGS. IF THE ASSESSEE DOES NOT COOPERATE IN THE SET ASIDE ASSESSMENT PROCEEDINGS THE A.O. SHALL BE AT LIBERTY TO DRAW A DVERSE INFERENCE AGAINST THE ASSESSEE. WHILE COMPLETING THE SET ASI DE PROCEEDINGS THE A.O. SHALL ALSO CONSIDER THE ISSUE WHETHER THE ASSESSEE FALLS WITHIN THE DEFINITION OF A PERSON AS PROVIDED IN SECTION 2(31) OF THE ACT FOR THE RELEVANT ASSESSMENT YEARS. FURTHER TH E A.O. SHALL ALSO CONSIDER THE DIRECTIONS AS GIVEN IN THE ORDER OF TH IS TRIBUNAL IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1994-9 5 AND 1995- 96 IN I.T.A. NO. NOS. 1839 & 1840/DEL/2005 DATED 15 .01.2007 ALSO APPLY FOR THESE DE NOVO ASSESSMENTS. 6. FURTHER AS IT IS NOTICED THAT THERE IS AN INTERN AL DISPUTE IN THE SOCIETY IN SO FAR AS TWO GROUPS ARE CLAIMING CONTROL OVER T HE SOCIETY AND AS IT IS NOTICED THAT NEITHER OF THE GROUPS HAVE BEEN ABL E TO SUCCESSFULLY ESTABLISH THEIR CONTROL OVER THE SOCIETY AND AS IT IS ALSO NOTICED THAT THE MEMBERS OF BOTH THE GROUPS ARE MEMBERS OF THE S OCIETY CONSIDERING THE FACT THAT THE A.O. WOULD FIND IT DI FFICULT IN RESPECT OF ISSUING OF THE NOTICE TO ANY SPECIFIC PERSON IN THE SOCIETY ACCEDING TO THE REQUEST OF THE LD. D.R. AND THE LD. A. RS. THE FIRST DATE OF ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 8 HEARING BEFORE THE A.O. IS BEING FIXED 13 TH JANUARY 2010 ON WHICH DATE ALL SUCH PERSONS WHO WISH TO REPRESENT THE ASS ESSEE SOCIETY M/S. APARNA ASHRAM FROM OUT OF THE MEMBERS OF THE A SSESSEE SOCIETY SHALL MAKE REPRESENTATION BEFORE THE A.O. THE A.O. SHALL AFTER CONSIDERING THE SUBMISSIONS AND THE REPRESENT ATIONS OF THE MEMBERS OF THE ASSESSEE SOCIETY REPRESENTED BEFORE HIM PROCEEDED WITH DE NOVO ASSESSMENT IN ACCORDANCE WIT H LAW. IN THESE CIRCUMSTANCES THE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 7. IN I.T.A. NO. 800 & 801/DEL/2008 AS THE ISSUE IN THESE APPEALS ARE IN RESPECT OF LEVY OF PENALTY U/S 271(1)(A) OF THE ACT FOR HE ASSESSMENT YEARS 1981-82 AND 1984-85 AND AS WE HAV E ALREADY SET ASIDE THE ASSESSMENT FOR BOTH OF THESE ASSESSME NT YEARS BACK TO THE FILE OF THE A.O. FOR RE-ADJUDICATION DE NOVO THE PENALTY AS LEVIED U/S 271(1)(A) OF THE ACT DOES NOT HAVE ANY L EGS TO STAND ON. IN THESE CIRCUMSTANCES THESE PENALTY AS LEVIED ARE ALSO QUASHED. HOWEVER LIBERTY IS GIVEN TO THE A.O. TO INITIATE F RESH PENALTY PROCEEDINGS IF SO WARRANTED IN THE COURSE OF SET AS IDE ASSESSMENT PROCEEDINGS. 8. IN THE RESULT ALL THE APPEALS IN I.T.A. NOS. 32 12 3298 3299 3300 3301 3302 1550 1551 1552 1717 1718 1719 1 720 1721/DEL/2005 ARE ALLOWED FOR STATISTICAL PURPOSES AND IN I.T.A. NO. 800 & 801/DEL/2008 ARE ALLOWED. 9. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N .. NOV. 2009. (A. K. GARODIA) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER 3. IT WAS FURTHER MENTIONED THAT ITA NOS. 800 & 801 /DEL/2008 MENTIONED IN AFOREMENTIONED ORDER ALSO RELATE TO PE NALTY PROCEEDINGS. THUS IT WAS PLEADED THAT PRESENT APPEALS ARE COVER ED BY THE AFOREMENTIONED ORDER AND AS THE ASSESSMENT PROCEEDI NGS HAVE BEEN SET ASIDE AND RESTORED TO THE FILE OF AO THEREFORE SIMILAR ORDER HAS TO BE ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 9 PASSED IN RESPECT OF PRESENT PENALTY PROCEEDINGS AS HAS BEEN PASSED IN RESPECT OF ITA NOS. 800 & 801/DEL/2008. 4. ON THE OTHER HAND LD. DR RELIED UPON THE ORDER OF AO AND CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. ASSESSMENTS IN RESPECT OF WHICH IMPUGNED PENALTIES HAVE BEEN LEVIED HAVE ALREADY BEEN SET AS IDE TO THE FILE OF AO BY THE AFOREMENTIONED ORDER OF THE TRIBUNAL. CO-OR DINATE BENCH HAS ALSO CONSIDERED TWO APPEALS IN RESPECT OF ASSESSMEN T YEARS 1981-82 AND 1984-85 IN RESPECT OF LEVY OF PENALTY U/S 271(1 )(A) AND THEY HAVE OBSERVED THAT PENALTIES DO NOT SURVIVE HOWEVER LIB ERTY HAS BEEN GIVEN TO AO TO INITIATE FRESH PENALTY PROCEEDINGS IF SO WARR ANTED IN THE COURSE OF SET ASIDE ASSESSMENT PROCEEDINGS. THEREFORE RESPE CTFULLY FOLLOWING THE AFOREMENTIONED ORDER OF THE TRIBUNAL WE PASS SIMIL AR ORDER AND PRESENT PENALTIES ARE QUASHED AND LIBERTY IS GIVEN TO THE A O TO INITIATE FRESH PENALTY PROCEEDINGS IF SO WARRANTED IN THE COURSE O F SET ASIDE ASSESSMENT PROCEEDINGS. 6. IT MAY BE MENTIONED HERE THAT ITA NO. 1785/D/06 IS A DEPARTMENTAL APPEAL WHERE DEPARTMENT HAS AGITATED THE DELETION OF PENALTY LEVIED U/S 273 IN RESPECT OF A.Y. 1983-84 A ND IN THE CROSS OBJECTION ASSESSEE HAS SUPPORTED THE ORDERS OF CIT( A). SIMILAR ORDER IS PASSED IN THE DEPARTMENT APPEAL AND CROSS OBJECTION FILED AGAINST THAT ITA NOS. 1287 TO 1289 1503 TO 1505 1785 CO NO. 311 /D/06 2266 TO 2267 2295 & 2296 2317 TO 2320 & 25 76/D/06 - - 10 AS THE ASSESSMENT IN PURSUANCE TO WHICH PRESENT PEN ALTY WAS LEVIED HAS BEEN SET ASIDE TO BE FRAMED AFRESH AND LIBERTY IN T HIS YEAR ALSO IS GIVEN TO AO TO INITIATE FRESH PENALTY PROCEEDINGS IF SO W ARRANTED IN THE COURSE OF SET ASIDE ASSESSMENT PROCEEDINGS. 7. IN THE RESULT APPEALS FILED BY THE ASSESSEE CR OSS OBJECTION FILED BY THE ASSESSEE AND APPEAL FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH FEBRUARY 2010. (G.E. VEERABHADRAPPA) VICE PRESIDENT (I.P. BANSAL) JUDICIAL MEMBER DATED: 19 TH FEBRUARY 2010. KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR