RAJEEV BEHL, NEW DELHI V. ACIT, CENTRAL CIRCLE- 14, NEW DELHI

ITA 1206/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8044 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Keywords: Deemed dividend; Set aside
• Section: 271(1)(c); 143(3); 274

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH F: NEW DELHI ] BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER A N D SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA. NO. 1206/DEL/2018 (ASSESSMENT YEAR: 2009-10) SHRI RAJEEV BEHL, B 29, PAMPOSH ENCLAVE, NEW DELHI 110 048. PAN: AGSPB7758C VS. ACIT, CENTRAL CIRCLE : 14, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R. S. SINGHVI, C. A.; DEPARTMENT BY: SHRI GOVIND SINGHAL, SR. D.R.; DATE OF HEARING : 03/08/2021 DATE OF PRONOUNCEMENT : 25/08/2021 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)-XXVI, NEW DELHI DATED 20.12.2017 FOR ASSESSMENT YEAR 2009-10 WHEREIN, THE PENALTY LEVIED BY THE LD AO U/S 271(1)(C) OF THE ACT VIDE ORDER DATED 10.03.2016 WAS CONFIRMED. 2. THIS IS THE SOLITARY GROUND OF APPEAL BY THE ASSESSEE. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN UPHOLDING THE PENALTY OF RS 82,65,709/- IMPOSED BY THE ASSESSING OFFICER WHICH WAS BAD BOTH ON FACTS AND IN LAW IN IMPOSING PENALTY U/S 271 (1) (C) OF INCOME TAX ACT 1961. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN UPHOLDING THE PENALTY OF RS 82,65,709/- IMPOSED BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DISALLOWANCE OF LOSS ON SHARES, DEEMED DIVIDEND, AND ON ACCOUNT OF CASH DEPOSIT IN BANK. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN UPHOLDING THE PENALTY OF RS 82,65,709/- IMPOSED BY THE ASSESSING OFFICER SINCE INITIATION OF PENALTY BY ASSESSING OFFICER WAS ITSELF DEFECTIVE SINCE VIDE ORDER DATED 29/11/2011 THE ASSESSING OFFICER HAD INITIATED A GENERAL PENALTY UNDER SECTION 271 1 (C) AND HAS NOT INITIATED PENALTY UNDER SPECIFIC DISALLOWANCES. 4. THE ASSESSING OFFICER HAS IMPOSED PENALTY WITH-OUT APPRECIATING THE FACT THAT THE BASIC CONDITION FOR IMPOSITION OF PENALTY UNDER SECTION 271(1 )(C) ARE NOT EXISTING IN THIS CASE. 3. THE BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME ON 27.09.2010 DECLARING LOSS OF RS. 71,31,946/-. THE ASSESSMENT ORDER U/S 143(3) WAS PASSED BY THE LD ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI MAKING AN PAGE | 2 ADDITION OF RS. 2,48,34,728/- AND ALSO INITIATING PENALTY U/S 271 (1) OF THE ACT BY HOLDING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO PARTLY ALLOWED THE APPEAL. HOWEVER, HE CONFIRMED THE ADDITION OF RS. 1,89,29,665/- ON ACCOUNT OF LOSS ON SHARES AND DEEMED DIVIDEND OF RS. 46,62,150/-. THE LD AO ISSUED NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT ON 30.12.2011. THE ASSESSEE DID NOT SUBMIT ANY REPLY AND THEREFORE, THE LD AO LEVIED A PENALTY OF RS. 82,65,709/- BY PASSING AN ORDER ON 10.03.2016. THIS WAS CHALLENGED BEFORE THE LD CIT(A) WHO CONFIRMED THE ORDER OF THE LD AO VIDE ORDER DATED 20.12.2017 AND THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD AR VEHEMENTLY STATED THAT FOR ASSESSMENT YEAR 2009-10 IN ITA NO. 3406/DEL/2014 THE ADDITION MADE BY THE LD AO AND CONFIRMED BY THE LD CIT(A) WERE CHALLENGED BEFORE THE ITAT IN ITA NO. 3406/DEL/2014 AND ITAT IS PLEASED TO PASS AN ORDER ON 02.05.2018 WHEREIN, THE APPEAL OF THE ASSESSEE WAS SET ASIDE TO THE FILE OF THE LD AO AND THEREFORE, THE ADDITION DO NOT SUSTAIN AND HENCE, THE PENALTY IS DESERVED TO BE DELETED. 5. THE LD DR STRONGLY OBJECTED TO THE ARGUMENT OF THE LD AR. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN THE PRESENT CASE THE ADDITION MADE BY THE LD AO AND CONFIRMED BY THE LD CIT(A) HAS BEEN SET ASIDE BY THE COORDINATE BENCH BACK TO THE FILE OF THE LD AO. THE ADDITION HAS NOT BEEN DELETED BUT REQUIRES A FRESH EXAMINATION BY THE ASSESSING OFFICER. THEREFORE IN SUCH CIRCUMSTANCES IN ALL FAIRNESS THE PENALTY ORDER ALSO SHOULD GO BACK TO THE ASSESSING OFFICER FOR FRESH DETERMINATION. THEREFORE WE ALSO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER WITH A DIRECTION TO THE LD AO THAT IN CASE OF ADDITION IS MADE IN THE HANDS OF THE ASSESSEE, HE SHOULD RECORD CLEAR CUT SATISFACTION ABOUT THE FURNISHING INACCURATE PARTICULARS OR CONCEALMENT OF INCOME BY ISSUING NOTICE U/S 274 OF THE ACT. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THE LD AO IS DIRECTED TO DEAL WITH THE PENALTY PROCEEDINGS AS AND WHEN THE DIRECTION OF THE LD COORDINATE BENCH IN QUANTUM APPEAL IS DECIDED. 7. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/08/2021. SD/- SD/- ( KUL BHARAT ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25/08/2021. *AKKEOT* COPY FORWARDED TO 1. APPELLANT; PAGE | 3 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI PAGE | 4 DATE OF DICTATION 25.08.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.08.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 25.08.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 25.08.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 25.08.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 25.08.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 25.08.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.08.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER