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TMI Blog2018 (9) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been allowed to continue by the First Appellate Authority and he was required by Law to follow the Order of the Tribunal to do substantial justice between the parties. No justification for CIT(A) to dismiss the appeal of assessee-company as withdrawn because it is well settled Law that assessee-company having once filed an appeal cannot withdraw it. Assessee-company under such circumstances was fully justified for filing appeal before the Tribunal. We, therefore, reject the contention of the CIT-D.R. that assessee-company cannot file appeal before the Tribunal in such circumstances. - ITA.No.7686/Del./2017, ITA.No.7687/Del./2017 And ITA.Nos.7688 And 7689/Del./2017 - - - Dated:- 5-9-2018 - SHRI BHAVNESH SAINI, JUDICIAL MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the tune of ₹ 8.50 crores from M/s. Puneet Oils Chemicals Pvt. Ltd., and M/s. Tanish Tradecom Pvt. Ltd., at ₹ 4.25 crores. The A.O. noted that assessee-company has not proved the loan transaction of ₹ 8.50 crores which was added under section 68 of the I.T. Act, 1961. The Ld. CIT(A) dismissed the appeal of assesseecompany vide Order dated 12.12.2014. The A.O. accordingly, initiated the penalty proceedings under section 271(1)(c) of the I.T. Act, 1961. The assessee-company submitted before the A.O. that it has preferred an appeal before the ITAT, therefore, penalty may be kept in abeyance. However, A.O. decided the penalty matter and vide separate order levied the penalty on the aforesaid addition vide Order dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61, The assessee-company preferred appeal before ITAT, Delhi G-Bench in ITA.No.732/Del./2015 which have been decided by the Tribunal vide Order dated 04.08.2017 along with quantum appeals of other assessees M/s. Spirit Global Construction Pvt. Ltd., New Delhi and M/s. Spirit Infrastructure Pvt. Ltd., New Delhi and the Tribunal quashed the re-assessment proceedings initiated by the A.O. as void. Copy of the Order is placed on record. Learned Counsel for the Assessee submitted that the same Order of the Tribunal was also placed before Ld. CIT(A) intimating that appeal of the assessee-company has been allowed by the Tribunal, therefore, Ld. CIT(A) should not have dismissed the appeal of the assessee-company as withdrawn. He has submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 68 of the I.T. Act which was the basis for levy of the penalty against the assessee-company. The assessee8 company admittedly preferred appeal before ITAT, Delhi Bench and the Tribunal in the case of assessee-company and two other assessee-company s, have quashed the re-assessment proceedings initiated by the A.O. vide Order dated 04.08.2017. Therefore, all additions made in the re-assessment order would not survive which was the basis for levy of the penalty against the assessee-company. Thus, on the face of it, the foundation to levy penalty against the assessee-company has disappeared and have gone. Hence, there is no justification for levy of the penalty against the assessee-company in such circumstances. Learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) to have allowed the Counsel for Assessee to withdraw the appeal. The Hon ble Calcutta High Court in the case of Bhartia Steel Engineering Co. Pvt. Ltd., vs. ITO, K Ward, Companies District-I, Calcutta (1974) 97 ITR 154 held as under : Held, that it has been held in King v. Income-tax Special Commissioners ([1936] 1 K.B. 487 (C.A.)) and Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal Chamaria ([1967] 66 I.T.R. 443 (S.C.)) that an assessee, having once filed an appeal, cannot withdraw it. Consequently, the appellate authority could not allow such withdrawal. The taxing authorities are not deciding a case inter parties ; they are assessing or estimating the amount on which, in the interests of the country at l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) held that duty caste on A.O. to apply relevant provisions of Law for the purpose of determining the true figure of assessee s taxable income . 8.2. Considering the facts of the case and above discussion, it is evident in this case that the assesseecompany submitted a copy of the Order of the Tribunal dated 04.08.2017 before Ld. CIT(A) explaining that ITAT has accepted the appeal of assessee-company and all additions made in the re-assessment order stands quashed. If there were mistake in the letter of the Counsel for Assessee, the Ld. CIT(A) should have gone by the Order of the Tribunal and by following the Order of the Tribunal should have set aside and delete the penalty in the matter because there were no foundation exist for lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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