TaxTMI 
TaxTMI 
2018 (9) TMI 347
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.... have heard the Learned Representatives of both the parties and perused the material available on record. Both the parties mainly argued in ITA.No.7686/Del./2017 (Spirit Infradevelopers Pvt. Ltd., New Delhi) and submitted that the issue is same in the remaining appeals and Order in that case may be followed in the remaining three appeals. We, therefore, for the purpose of disposal of all the appeals, proceeded to decide ITA.No.7686/Del./2017 as under. ITA.No.7686/Del./2017 - A.Y. 2011-2012 Spirit Infradevelopers Pvt. Ltd., 3. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-XXVI, New Delhi, Dated 23.10.2017, for the A.Y. 2011-2012, challenging the levy of penalty under section 271(1)(c) of the I.T. Act,....
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.... in the assessment order and the Tribunal vide Order dated 04.08.2017 has accepted the appeal of assessee-company. Copy of the Order was also filed before Ld. CIT(A). It was, therefore, submitted that as on date, all additions made during assessment stands quashed. It was, therefore, submitted that the impugned penalty order has become nonest and therefore, the assessee-company wishes to withdraw this appeal filed before the Ld. CIT(A). The assessee-company, therefore, prayed before Ld. CIT(A) to accept the withdrawal of this appeal filed by the assessee-company and take suitable action and to kindly inform the assessee-company of any obligation required to be discharged on its part. The Ld. CIT(A) in view of the submission of the assessee-....
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.... order have been quashed, there were no reason to withdraw the appeal and assessee-company requested that suitable action may be taken in this regard. Affidavit of the C.A. Ms. Roli Chaubey is filed on record in which she has affirmed that she had inadvertently mentioned in the letter for withdrawal of the appeal as she was not aware of the procedure. Learned Counsel for the Assessee, therefore, submitted that since quantum addition have been deleted, therefore, no penalty order would survive. 7. On the other hand, Ld. D.R. relied upon the Order of the Ld. CIT(A) and submitted that once appeal have been withdrawn by the Counsel for the Assessee, assessee-company cannot file appeal before the Tribunal. The Ld. CIT-D.R. however, did not di....
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....CIT(A) shows that Counsel for the Assessee filed letter before Ld. CIT(A) explained therein that the Tribunal has allowed the appeal of assessee-company and all additions have been deleted and as such, penalty order has become non-est, therefore, Counsel for Assessee wishes to withdraw the appeal. It appears to be a blatant mistake committed by the Counsel for Assessee by making a request for withdrawal of the appeal. However, the things are very clear that the Counsel for Assessee explained all the facts before Ld. CIT(A) that the Tribunal has quashed the reassessment order and as such, all additions stands deleted. The assessee-company also pleaded in the same letter before Ld. CIT(A) that suitable action may be taken and assessee company....
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....ciple of law that jurisdiction cannot be conferred by consent of parties. If under the Income-tax Act, the Tribunal had to dispose of the appeal on the merits and had no power to allow the withdrawal of the appeal on the prayer of the company, it is no argument that such withdrawal having been allowed on the prayer of the company itself, the order of the Tribunal, though invalid, will have to be upheld. There is no estoppel against a statute and an order which is invalid on the ground of want of jurisdiction cannot become valid by consent. The company was not, therefore, precluded from challenging the jurisdiction of the Tribunal in allowing it to withdraw the appeal. The said order was a void order and it had to be held that the appeal to ....
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....s. Thus, there were no justification for Ld. 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. The assesseecompany under such circumstances was fully justified for filing appeal before the Tribunal. We, therefore, reject the contention of the Ld. CIT-D.R. that assessee-company cannot file appeal before the Tribunal in such circumstances. Considering the facts of the case and above discussion, we set aside the Orders of the authorities below and cancel the penalty. 9. In the result, ITA.No.7686/Del./2017 of the Assessee is allowed. ITA.No.7687/Del./2017 Spirit Infrastructure Pvt. Ltd., - A.Y. 2011-12 AND ITA.Nos.768....