Smt. Deepa Bhatia, Delhi V. ITO, New Delhi

ITA 1166/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6638 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c); 80C; 143(3); 201; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1166/DEL/2016 (ASSESSMENT YEAR: 2007 - 08 ) DEEPA BHATIA, 31 - B, RAJPUR ROAD, CIVIL LINES, DELHI PAN: AASPB0922G VS. ITO, WARD - 20(2), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRADEEP SOBTI, CA SHRI SHUBHAM SOBTI, ADV REVENUE BY: NONE DATE OF HEARING 05/11 / 201 9 DATE OF PRONOUNCEMENT 03/02/2020 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 34, NEW DELHI DATED 22.12.2015 FOR ASSESSMENT YEAR 2007 - 08, WHEREIN, THE PENALTY LEVIED U/S 271(1)(C) OF RS . 63160/ - WAS UPHELD. THE ASSESSEE RAISED GROUNDS OF APPEAL CONTESTING THE PENALTY ONLY. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD. CIT(A) HAS ERRED IN LAW BY NOT QUASHING THE ORDER OF LD. A.O. DATED 26/03/2014. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW BY SUSTAINING ADDITION OF RS. 1,50,000/ - ON INTEREST PAID AGAINST HOUSING LOAN U/S 24(B) OF THE ACT. 3. THAT THE LD. CIT(A) ERRED IN LAW BY NOT CONSIDERING THE FACTS THAT THE BASIS ON WHICH ADDITION WAS MADE IN QUANTUM PROCEEDINGS WAS NO MORE SURVIVE IN VIEW OF ORDER OF HONBLE ITAT FOR A.Y. 2006 - 07. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW BY IMPOSING PENALTY U/S 271(L)(C) ON THE ASSESSEE WITHOUT GIVING REASONABLE OPPORTUNITY TO PRODUCE THE INTEREST CERTIFICATE ON ACCOUNT OF INTEREST ON HOUSE PROPERTY U/S 24(B) OF THE ACT. 5. THAT THE LD. CIT(A) HAS ERRED IN LAW B Y IMPOSING PENALTY U/S 271(L)(C) ON ADDITION OF RS. 54,846/ - ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT WITHOUT LOOKING INTO THE MATTER OF THE CASE AND WITHOUT GIVING OPPORTUNITY OF BEING HEARD. PAGE | 2 6. THAT THE LD. CIT(A) HAS PASSED THE PENALTY ORDER IN HASTE AND WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. 7. IN VIEW OF ABOVE THE PENALTY ORDER PASSED DESERVES TO BE SET ASIDE AND NEED TO BE QUASHED AS THE SAME WAS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 8. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, M ODIFY, AMEND OR DELETE ANY OF THE GROUND(S) OF APPEAL AT THE TIME OF HEARING AND ALL OF THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3 . THE BRIEF FACTS OF THE CASE SHOWS THAT THE ASSESSEE FILED HER RETURN OF I N COME OF RS. 131890/ - ON 29.10.2007. SH E DERIVES INCOME FROM HOUSE PROPERTY AND OTHER SOURCES. ASSESSMENT U/S 144 OF THE ACT WAS PASSED ON 29.12.2009, WHEREIN, THE ADDITION OF RS. 1 ,50,000/ - WAS MADE ON ACCOUNT OF INTEREST PAYMENT ON SELF OCCUPIES IN ABSENCE OF ANY SUPPORTING DOCUMENTS AND BASE D ON SIMILAR DISALLOWANCE OF ASSESSMENT YEAR 2006 - 07 CONFIRMED BY THE LD CIT(A). HOWEVER , DEDUCTION CLAIMED U/S 80C OF RS. 72848/ - WAS DISALLOWED AND RS. 20,000/ - WAS ADDED TO THE UNEXPLAINED HOUSEHOLD EXPENDITURE. THE PENALTY PROCEEDINGS U/S 271(1)(C) WER E INITIATED. THE APPEAL OF THE ASSESSEE AGAINST THE ABOVE ASSESSMENT ORDER WAS DISMISSED BY THE LD CIT(A) ON 02.05.2012, HENCE, FURTHER PENALTY NOTICE WERE ISSUED TO THE ASSESSEE WHEREIN, IT WAS STATED THAT APPEAL IS PENDING BEFORE THE COORDINATE BENCH. TH E LD AO DID NOT WAIT FOR THE ORDER OF THE COORDINATE BENCH BUT LEVIED THE PENALTY OF RS. 63160/ - AS 100% OF TAX. PENALTY ORDER WAS PASSED ON 26.03.2014. ASSESSEE CHALLENGE D IT BEFORE THE LD CIT( A), WHO ALSO PARTLY ALLOWED THE APPEAL AND DIRECTED TO DELETE THE PENALTY ON DEDUCTION U/S 80C OF THE ACT. THEREFORE, THE ASSESSEE IS IN APPEAL AGAINST THAT ORDER. 4 . THE LD AR REITERATED THE SAME ARGUMENT BEFORE THE LD CIT(A). 5 . NONE PRESENT ON BEHALF OF THE REVENUE IS PRESENT TO ARGUE THE CASE THE ISSUE IS DECIDED ON THE MERITS OF THE CASE. 6 . ASSESSMENT ORDER PASSED U/S 143(3) DID NOT HAVE ANY SATISFACTION WHETHER THE ASSESSEE HAS CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. IN THE PENA LTY ORDER ALSO THE LD AO LEVIED PENALTY FOR CONCEALMENT OF INCOME. THE LD CIT(A) CONFIRMED THE PENALTY STATING THAT IT IS FURNISHING INACCURATE PARTICULARS OF INCOME. IN VIEW OF THIS FACT THAT THERE IS NO CLEAR CHARGE IN THE NOTICE OR IN THE ASSESSMENT ORD ER OF THE FAULT OF THE ASSESSEE, THE LEVY OF THE PENALTY ON THE CHARGE OF CONCEALMENT , CONFIRMATION OF THE PAGE | 3 PENALTY BY THE LD CIT(A) ON THE CHARGE OF FURNISHING OF INACCURATE PARTICULARS CLEARLY SHOWS THAT THE PENALTY IN THE PRESENT CASE IS NOT SUSTAINABLE. FURTHERMORE, THE ASSESSEE HAS CLAIMED DEDUCTION OF RS. 1 , 50,000/ - ON ACCOUNT OF INTEREST OF SELF OCCUPIED PROPERTY. THE ASSESSEE COULD NOT SHOW THAT THE HOUSE WAS SELF OCCUPIE D HOWEVER, THERE IS NO EVIDENCE CONTRARY TO THE FACT THAT THE ASSESSEE PAID INTE REST. IN VIEW OF THIS , IT CANNOT BE SAID THAT ASSESSEE HAS CONCEALED ANY INCOME ON THAT ISSUE. THE LD AO THOUGH DISALLOWE D THE CLAIM OF DEDUCTION U/S 24(B) OF THE ACT, BUT THE DISALLOWANCE MADE DOES NOT FIT IN THE CATEGORY OF CONCEALMENT OF INCOME. FURTHE R , ON THE ADDITION ON ACCOUNT OF HOUSEHOLD EXPENDITURE THERE IS NO EVIDENCE THAT ASSESSEE HAS INCURRED EXPENDITURE WHICH IS NOT COVERED BY FROM HER KNOWN SOURCE OF INCOME. MERELY, BECAUSE AN ADDITION HAS BEEN CONFIRMED , THE PENALTY U/S 271(1)(C) CANNOT BE SUSTAINED . EVEN OTHERWISE, WHEN AO LEVIED PENALTY FOR CONCEALMENT OF INCOME WITHOUT SPECIFYING ANY CHARGE IN ASSESSMENT ORDER AND CONFIRMATION OF IT BY LD CIT(A) ON CHARGE OF FURNISHING OF INACCURATE PARTICULARS, CANNOT BE SUSTAINED. 7 . IN THE RESULT, PENALT Y LEVIED BY THE LD AO IS DELETED AND APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/2020 - SD/ - - SD/ - ( SUDHANSHU SRIVASTAVA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03/02/2020 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI