M/s. Sam India Builtwell (P) Ltd., Delhi V. DCIT, New Delhi

CO 140/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0649 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH VERMA
• Keywords: Search and seizure; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: C , NEW DELHI BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 2795/DEL/2015 AY: 2008 - 09 ITA NO. 2796/DEL/2015 AY: 2009 - 10 ITA NO. 2797/DEL/2015 AY: 2010 - 11 DCIT CENTRAL CIRCLE 13) ROOM NO. 355 3 RD FLOOR, JHANDEWALAN EXTENSION NEW DELHI VS . SAM INDIA BUILTWELL (P) LTD. 435, VIKAS MARG EXTN. JAGRITI ENCLAVE DELHI 110 092 PAN: AABCS7627K (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.140/DEL/2018 (IN ITA NO. 2795/DEL/2015 - AY: 2008 - 09 ) CROSS OBJECTION NO.141/DEL/2018 (IN ITA NO. 2796/DEL/2015 - AY: 2009 - 10 ) CROSS OBJECTION NO.142/DEL/2018 (IN ITA NO. 2797/DEL/2015 - AY: 2010 - 11 ) SAM INDIA BUILTWELL (P) LTD. 435, VIKAS MARG EXTN. JAGRITI ENCLAVE DELHI 110 092 PAN: AABCS7627 K VS . DCIT CENTRAL CIRCLE 13) ROOM NO. 355 3 RD FLOOR, JHANDEWALAN EXTENSION NEW DELHI (APPELLANT) (RESPONDENT) ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 2 DEPARTMENT BY : SH. SUBHASH VERMA, SR.D.R. ASSESSEE BY : SH. C.S. ANAND, C.A. DATE OF HEARING : 11.09.2018 DATE OF PRONOUNCEMENT : 1 9 . 0 9 . 2 0 1 8 ORDER PER BE NCH PRESENT APPEALS BY REVENUE AND THE CROSS OBJECTIONS BY ASSESSEES HAVE BEEN FILED AGAINST ORDER DATED 06/02/15 PASSED BY LD. CIT (A) - 25, FOR ASSESSMENT YEARS 2008 - 09 TO 2010 - 11, ON FOLLOWING GROUNDS OF APPEAL: ITA 2795/DEL/15 A.Y.: 2008 - 09 1. T HE LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS IN DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.29,85,330/ - . 2.(A) THE ORDER OF THE LD.CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. CO NO. 140/ D EL/2018 1. WHETHER THE PENALTY ORDER DT. 29.9.2014 BASED UPON THE VAGUE/NON SPECIFIC NOTICE DT. 26.3.2014 (WHEREIN THE CHARGE AS TO WHETHER THE ASSESSEE HAD CONCEALED THE PARTICULARS OF ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME) IS NOT LIABLE TO BE QUASHED. WITHOUT PREJUDICE 2. WHETHER INITIATING PENALTY U/S 271(1)(C) ON THE GROUND OF FU RNISHING INACCURATE PARTICULARS OF INCOME (AS MENTIONED IN THE ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 3 ASSESSMENT ORDER), AND LEVYING PENALTY U/S 271(1)(C) ON THE GROUND OF CONCEALMENT OF INCOME (AS MENTIONED IN THE PENALTY ORDER), IS NOT BAD IN LAW. ITA NO. 2796/ D EL/2015 (A Y 2009 - 10) 1. T HE LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS IN DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.35,34,460/ - . 2.(A) THE ORDER OF THE LD.CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPEL LANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. CO NO. 14 1 / D EL/2018 1. WHETHER THE PENALTY ORDER DT. 29.9.2014 BASED UPON THE VAGUE/NON SPECIFIC NOTICE DT. 26.3.2014 (WHEREIN THE CHARGE AS TO WHETHER THE ASSESSEE HAD CONCEALED THE PARTICULARS OF ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME) IS NOT LIABLE TO BE QUASHED. WITHOUT PREJUDICE 2. WHETHER INITIATING PENALTY U/S 271(1)(C) ON THE GROUND OF FURNISHING INACCURATE PARTICULARS OF INCOME (AS MENTIONED IN THE ASSESSMENT ORDER), AND LEVYING PENALTY U/S 271(1)(C) ON THE GROUND OF CONCEALMENT OF INCOME (AS MENTIONED IN THE PENALTY ORDER), IS NOT BAD IN LAW. ITA NO. 2797/ D EL/2015 (A Y 2010 - 11) 1. T HE LEARNED C IT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS IN DELETING THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.59,75,000/ - . ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 4 2.(A) THE ORDER OF THE LD.CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. C . O . NO. 142/ D EL/2018 1. WHETHER THE PENALTY ORDER DT. 29.9.2014 BASED UPON THE VAGUE/NON SPECIFIC NOTICE DT. 26.3.2014 (WHEREIN THE CHA RGE AS TO WHETHER THE ASSESSEE HAD CONCEALED THE PARTICULARS OF ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME) IS NOT LIABLE TO BE QUASHED. WITHOUT PREJUDICE 2. WHETHER INITIATING PENALTY U/S 271(1)(C) ON THE GROUND OF FURNISHING INACCURATE PARTICULARS OF INCOME (AS MENTIONED IN THE ASSESSMENT ORDER), AND LEVYING PENALTY U/S 271(1)(C) ON THE GROUND OF CONCEALMENT OF INCOME (AS MENTIONED IN THE PENALTY ORDER), IS NOT BAD IN LAW. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: A SSESSEE I S A CIVIL CONTRACTOR AND HAD FILED ITS RETURN OF INCOME DECLARING A SUM OF RS.7,23,70,291/ - FOR A SSESSMENT Y EAR 2008 - 09 ; A T RS.7,46,21,889/ - FOR A SSESSMENT Y EAR 2009 - 10 , AND A T A SUM OF RS.8,18,41,383/ - FOR A.Y. 2010 - 11 ON 12/10/10. ASSESSMENT WAS COMPLE TED UNDER SECTION 143 (3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') BY MAKING A FEW DISALLOWANCES FOR ALL THE YEARS UNDER CONSIDERATION. 2.1. SUBSEQUENTLY, A SEARCH AND SEIZURE WAS CARRIED OUT ON 15/06/11 AT BUSINESS AND RESIDENTIAL PREMISES OF ASSESSEE , ALONG WITH SAM INDIA GROUP OF CASES. SUBSEQUENTLY NOTICE UNDER SECTION 153A WAS ISSUED, AND THEREAFTER NOTICE UNDER SECTION 143 ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 5 (2)/142 (1) OF THE ACT, ALON G WITH QUESTIONNAIRE WAS ISSUED UPON ASSESSEE. ASSESSEE SUBMITTED VARIOUS REQUISITE DETAILS AS CALLED FOR. DURING ASSESSMENT PROCEEDINGS, ASSESSEE OFFERED INCOME ON THE BASIS OF DOCUMENTS SEIZED FROM PREMISES , AND ASSESSMENT WAS COMPLETED UNDER SECTION 14 3 (3) READ WITH 153A OF THE A CT, AND INCOME WAS ASSESSED BY MAKING ADDITION OF SUCH AMOUNT AS DECLARED IN THE RETURN OF INCOME . ASSESSING O FFICER THEN INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME. 2.2 . BASED UPON INITIATION OF PENALTY PRO CEEDINGS, A SSESSING O FFICER ISSUED NOTICE UNDER SECTION 271 (1) (C ) READ WITH SECTION 274 OF THE A CT. VARIOUS SUBMISSIONS WERE FILED BY ASSESSEE AND ON CONSIDERING THE SAME LD. A.O., LEVIED 100% PENALTY ON INCOME SOUGHT TO BE EVADED. 2.3 . AGGRIEVED B Y PENALTY ORDER, ASSESSEE PREFERRED APPEAL BEFORE LD.CIT (A) WHO DELETED PENALTY LEVIED BY LD.AO. 2.4. AGGRIEVED BY THE ORDER OF LD. CIT (A) , REVENUE IS IN APPEAL BEFORE US NOW. 3. IT HAS BEEN SUBMITTED THAT ISSUE RAISED BY REVENUE IN ALL THE THREE ASSESSMENT YEARS UNDER CONSIDERATION , ARE SIMILAR AND IDENTICAL AND ARISES OUT OF SAME ORDER PASSED BY LD.CIT (A). LD.AR SUBMITTED THAT ASSESSEE RAISED C ROSS O BJECTION CHALLENGING LEGAL ISSUE REGARDING VALIDITY OF IMPOSITION OF PENALTY IN THE ORDER PA SSED UNDER SECTION 271 (1) (C) OF THE A CT BY LD.AO. IT HAS BEEN SUBMITTED THAT LEGAL GROUND RAISED BY ASSESSEE IN C ROSS O BJECTION, DOES NOT REQUIRE ANY NEW FACTS TO BE INVESTIGATED UPON. 4. WE HAVE PERUSED THE GROUNDS RAISED BY ASSESSEE IN C ROSS O BJECTION S, AND ARE OF THE OPINION THAT, IT LEADS TO THE ROOT OF LEVY ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 6 OF PENALTY. ACCORDINGLY WE ARE INCLINED TO DEAL WITH GROUNDS RAISED BY ASSESSEE IN C ROSS O BJECTIONS FO R THE YEARS UNDER CONSIDERATION FIRST. 5. LD.C OUNSEL SUBMITTED THAT IN THE BODY OF ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) READ WITH 153 A OF THE A CT , A SSESSING O FFICER HELD PENALTY TO BE LEVIABLE FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME , HOWEVER IN PENALTY ORDER PASSED, IT IS OBSERVED THAT LIABILITY ON ASSESSEE HAS BEEN CAST FOR CONCEALMENT OF INCOME . IT IS OBSERVED THAT WHILE CONCLUDING PENALTY ORDER, A SSESSING O FFICER HELD PENALTY TO BE LEVIED ON ASSESSEE FOR CONCEALMENT OF INCOME IN RETURNS FILED. 6. HE SUBMITTED THAT IN REPLY FILED IN RESPONSE TO NOTICE ISSUED TO ASSESSEE AGAINST LEVY OF PENALTY , ASSESSEE HAD CATEGORICALLY RAISED OBJECTION REGARDING CHARGE , BEING UNCLEAR IN ASSESSMENT ORDER ITSELF. HE REFERRED TO COPY OF REPLY PLACED AT PAGE 15 - 22 OF PAPER BOOK FOR A SSESSMENT Y EAR 2008 - 09. LD. COUNSEL SUBMITTED THAT IDENTICAL REPLY WAS FILED BY ASSESSEE FOR ASSESSMENT Y EAR 2009 - 10 AND 2010 - 11, WHICH HAS NOT BEEN CONSIDERED BY LD.AO WHILE PASSING PENALTY ORDER . 7. LD. SR.DR ON THE OTHER HAND SUBMITTED THAT, PRESENT CASE FALLS WITHIN THE AM BIT OF EXPLANATION 5 A TO SECTION 271 (1) ( C) OF THE A CT. HE SUBMITTED THAT ASSESSEE SURRENDERED INCOME ON THE ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 7 BASIS OF DOCUMENTS SEIZED DURING SEARCH AND SURVEY PROCEEDINGS , WHICH TOOK PLACE AFTER DUE DATE OF FILING OF RETURNS FOR THE RELEVANT YEARS UNDER CONSIDERATION. LD.SR.DR THUS SUBMITTED THAT PENALTY HAS BEEN RIGHTLY LEVIED. 8 . WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 9. WE HAVE ALSO ANALYSED APPLICABILITY OF EXPLANATION 5 A TO SECTION 2 71 (1) (C) OF THE A CT TO THE FACTS OF PRESENT CASE . IN OUR CONSIDERED OPINION A SSESSING O FFICER HAS NOT INITIATED EXPLANATION 5 A TO SECTION 271 (1) ( C) OF THE A CT AND , THEREFORE , PLEA RAISED BY LD.SR.DR CANN OT BE APPRECIATED AT THIS STAGE FOR ANY OF THE ASSESSMENT YEARS UNDER CONSIDERATION. 10. NOW COMING TO THE CONTENTIONS RAISED BY LD. COUN SEL , IT IS OBSERVED THAT ADMITTEDLY , A SSESSING O FFICER IN ASSESSMENT ORDER HAS INITIATED PENALTY PROCEEDINGS FOR FILING OF INACCURATE PARTICULARS , HOWEVER , WHILE PASSING PENALTY ORDER LD. AO EXPRESSE D SATISFACTION REGARDING CONCEALMENT OF INCOME. FROM REPLY FILED BY ASSESSEE PLACED IN PAPER BOOKS FOR RELEVANT A SSESSMENT Y EARS UNDER CONSIDERATION , IT IS DISCERNIBLE THAT ASSESSEE RAISED THIS OBJECTI ON BEFORE LD.AO WHICH HAS N EITHER BEEN CONSIDERED NOR BEEN RECTIFIED WHILE PASSING PENALTY ORDERS. IN OUR CONSIDERED OPINION A SSESSING O FFICER HAS FAILED IN LEV YING PENALTY ON A SPECIFIC CHARGE BEING EITHER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS . UNDER SUCH CIRCUMSTANCES , WE ARE OF THE CONSIDERED OPINION THAT PENALTY ORDER S PASSED BY LD.AO DESERVES TO BE QUASHED AND SET - ASIDE. ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 8 11. AS WE HAVE SET ASIDE AND QUASHED THE PENALTY ORDER PASSED BY LD.AO, WE DO NOT SEE MERIT IN THE APPEALS OF THE REVENUE. 12. IN THE RESULT , C ROSS O BJECTIONS FILED BY ASSESSEE ON LEGAL ISSUE RAISED , STAND ALLOWED AND APPEAL S FILED BY REVENUE ARE DISMISSED AS INFRUCTUOUS . ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H SEPTEMBER, 2018. S D / - S D / - (N.K.SAINI) (BEENA A PILLAI) ACCOUNTANTMEMBER JUDICIAL MEMBER DT. 1 9 T H SEPTEMBER, 2018 GMV COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NOS. 2795 - 2797/DEL/15 DCIT VS. SAM INDIA BUILTWELL (P) LTD. WITH C.O.NOS. 140 - 142/DEL/18 A.YS 2008 - 09 2010 - 11 9 DETAILS DATE DRAFT DICTATED ON DRAGON 1 7 /09/18 DRAFT PLACED BEFORE AUTHOR 1 8 /09/18 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER APPROVED DRAFT COMES TO THE SR. PS/PS KEPT FOR PRONOUNCEMENT ORDER UPLOADED ON : FILE SENT TO BENCH CLERK DATE ON WHICH THE FILE GOES TO HEAD CLERK DATE ON WHICH FILE GOES TO A.R. DATE OF DISPATCH OF ORDER