Sh. Jogendra Kumar, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 1148/DEL/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1793 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 29-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASAN TAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT MEMBER ITA NO. 1148/DEL/2015 : ASSTT. YEAR : 2008 - 09 SH. JOGENDRA KUMAR, 290/1, BRAH AMPURI, MUZAFFARNAGAR (U.P.) VS INCOME TAX OFFICER, WARD - 1(1 ), MUZAFFARNAGAR (U.P) (APPELLANT) (RESPONDENT) PAN NO. A A EFJ0413A ASSESSEE BY : NONE REVENUE BY : SH. T. VASANTAN, DR DATE OF HEARING : 29.09 .2015 DATE OF PRONOUNCEME NT : 30 .11 .2015 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 29.12 .2014 OF LD. CIT(A) , MUZAFFARNAGAR . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE SUSTENANCE OF PENAL T Y OF RS. 5,024/ - LEVI ED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 30.09.2008 DECLARING TAXABLE INCOME OF RS. 2,49,360/ - . HOWEVER, THE ASSESSMENT W AS FRAMED AT AN INCOME OF RS. 3,06,092/ - BY ESTIMATING ENHANCED FIGURES OF GROSS RECEIPTS. ON THE APPEAL OF THE ITA NO . 1148 /DEL /2015 JOGENDRA KUMAR 2 ASSESSEE, T HE LD. CIT(A), MUZAFFARNAGAR HAD ALLOWED PART RELIEF AND CONSEQUENTLY TAXABLE INCOME WAS DETERMINED AT RS. 2,65,620/ - . THE AO INITIAT ED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT BECAUSE THERE W AS DIFFERENCE OF RS. 16,260/ - BETWEEN THE INCOME SHOWN IN THE RETURN OF INCOME AND AS DETERMINED AFTER THE ORDER OF THE FIRST APPELLATE AUTHORITY. THE AO LEVIED THE PENALTY OF RS. 5,024/ - U /S 271(1)(C) OF THE ACT. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO CONCEALMENT OF INCOME AND THE INCOME WAS DETERMINED BY THE AO AS WELL AS BY THE LD. CIT(A) ON THE BASIS OF ESTIMATION, THEREFORE, PENALTY U/S 271(1)(C) OF THE ACT WAS NOT LEVIABLE. 6 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 7 . I HAVE CONSIDERED TH E SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE AO MADE THE ADDITION BY AN ESTIMATING THE ENHANCED FIGURES OF THE GROSS RECEIPTS SHOWN BY THE ASSESSEE. THE LD. CIT(A) ALSO SUSTAINED THE ADDITION ON ESTIMATE BASIS . IN THE INSTANT CASE WHEN THE INCOME HAS BEEN DETERMINED ON ESTIMATE BASIS, IT CANNOT BE ITA NO . 1148 /DEL /2015 JOGENDRA KUMAR 3 SAID THAT THE ASSESSEE CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THEREFORE, THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON ESTIMATED ADDITION WAS NOT JUSTIFIED. IT IS ALSO NOTICED THAT THE AO IN THE PENALTY ORDER NOWHERE STATED THAT THE ASSESSEE CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. HE LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT BY SIMPLY STATING THAT THERE WAS DIFFERENCE OF RS. 16,260/ - BETWEEN THE INCOME SHOWN IN THE RETURN OF INCOME AS DETERMINED AFTER APPEAL. I, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE DELETE THE PENALT Y LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) AMOUNTING TO RS. 5,024 U/S 271(1)(C) OF THE ACT. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 30 /11 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 30 /11 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR