Late Smt Kamlesh Sant, New Delhi V. ITO, New Delhi

ITA 1344/DEL/2014

• Counselvise Citation: 134420114 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 11-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GARIMA JAIN SENIOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH SMC SMC SMC SMC- -- -1 11 1 : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT ITA NO ITA NO ITA NO ITA NO . .. . 1344/DEL/2014 1344/DEL/2014 1344/DEL/2014 1344/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2007 2007 2007 2007 - -- - 08 0808 08 LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, (THROUGH LEGAL HEIR SHRI (THROUGH LEGAL HEIR SHRI (THROUGH LEGAL HEIR SHRI (THROUGH LEGAL HEIR SHRI RAKESH SANT), RAKESH SANT), RAKESH SANT), RAKESH SANT), E EE E- -- -4/15, JHANDEWALAN 4/15, JHANDEWALAN 4/15, JHANDEWALAN 4/15, JHANDEWALAN EXTENSION, EXTENSION, EXTENSION, EXTENSION, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : ABEPS6616D. PAN : ABEPS6616D. PAN : ABEPS6616D. PAN : ABEPS6616D. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -38(4), 38(4), 38(4), 38(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : MS. GARIMA JAIN, SENIOR DR. DATE OF HEARING : 11.08.2015 11.08.2015 11.08.2015 11.08.2015 DATE OF PRONOUNCEMENT : 08.09.2015 08.09.2015 08.09.2015 08.09.2015 ORDER ORDER ORDER ORDER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2007-08 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVIII , NEW DELHI DATED 2 ND DECEMBER, 2013. 2. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE- APPELLANT AND, THEREFORE, THE APPEAL OF THE ASSESSE E IS BEING DISPOSED OF EX PARTE ON MERITS AFTER HEARING THE ARGUMENTS O F LEARNED DR. 3. THE EFFECTIVE GROUNDS OF APPEAL OF THE ASSESSEE ARE GROUND NO.1 & 2, WHICH ARE REPRODUCED HEREUNDER:- 1. THAT THE LEGAL HEIR OF THE DECEASED NORMALLY RE MAINS OUT OF TOWN BECAUSE OF HIS OCCUPATION AND COULD NOT COMPLY WITH THE NOTICES ISSUED BY LD.CIT APPEALS-XX VIII, NEW DELHI RESULTING IN UPHOLDING OF PENALTY IMPOSED BY THE LD. ASSESSING OFFICER, WARD-38(4), NEW DELHI AMOUNT ING TO ITA-1344/DEL/2014 2 RS.1,12,560/- U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 AND WITH THE RESULT, LEGAL HEIR OF THE DECEASED ASS ESSEE WAS UNABLE TO PRESENT HIS VERSION BEFORE THE LD.CIT APPEALS-XXVIII, NEW DELHI. 2. THAT THE LD.CIT (APPEALS) HAD IGNORED THAT THE LEARNED ASSESSING OFFICER HAD ERRED IN LAW AND OF F ACTS THAT A SURRENDER OF RS.3,00,000/- AND RS.67,843/- WAS MA DE BY THE LEGAL HEIR OF THE DECEASED ASSESSEE AS HE WAS N OT AWARE OF THE TRANSACTION MADE BY THE DECEASED AND UNABLE TO SATISFACTORY EXPLAIN THE SOURCE AND THERE FORE SUCH SURRENDER WAS MADE IN ORDER TO PURCHASE PEACE WITH THE DEPARTMENT AND TO AVOID PROLONGED LITIGATION. 4. LEARNED DR HAS REFERRED TO THE RELEVANT PORTION OF THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A) IN SUP PORT OF THE CASE OF THE REVENUE. SHE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT DATED 22 ND JANUARY, 2013 IN CIT VS. MAK DATA LTD. IN ITA NO.4 15/2012. 5. I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DR AND HAVE PERUSED THE ORDER OF THE AO AND THE LEARNED CIT(A). I FIND THAT THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS REGARDING V ALIDITY OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT. I FIND THAT THE A SSESSEE IN THIS CASE HAS ALREADY EXPIRED AND THE LEGAL HEIR SHRI RAKESH SANT WAS IMPLEADED AT THE TIME OF FILING OF THE FIRST APPEAL BEFORE THE L EARNED CIT(A). THE PENALTY HAS BEEN LEVIED ON THE LEGAL HEIR OF THE AS SESSEE AS HE FAILED TO EXPLAIN THE SOURCE OF ADDITION OF `3,00,000/- AN D `67,843/- IN THE STATEMENT OF AFFAIRS AS ON 31.03.2007 AND AN ADDITI ON OF `49,500/- WAS ALSO MADE ON ACCOUNT OF BANK INTEREST NOT DISCLOSED BY THE ASSESSEE. THE AMOUNT OF `3,00,000/- WAS SURRENDERED BY THE LE GAL HEIR OF THE ASSESSEE DURING ASSESSMENT PROCEEDINGS ITSELF. THE PENALTY WAS NOT LEVIED ON THE AMOUNT OF `49,500/- AND WAS LEVIED ON THE AMOUNT OF `3,00,000/- AND `67,843/-. I FIND THAT THE ASSESSE E HAS TRIED TO EXPLAIN THE SOURCE OF ADDITION OF `3,00,000/- AND `67,843/- IN THE STATEMENT OF AFFAIRS AS ON 31.03.2007. THE MATERIAL FACTS WERE DISCLOSED BY THE ASSESSEE AT THE TIME OF ASSESSMENT ITSELF BEFORE TH E ASSESSING OFFICER. THERE IS NO MATERIAL BROUGHT ON BEHALF OF THE REVEN UE TO SUGGEST THAT ITA-1344/DEL/2014 3 THE EXPLANATION OF THE ASSESSEE IN THIS REGARD WAS NOT BONA FIDE. THE ASSESSEE SMT. KAMLESH SANT HAS ALREADY EXPIRED AND THE LEGAL HEIR HAS TRIED TO EXPLAIN THE SOURCE OF THE ADDITION IN THE STATEMENT OF AFFAIRS AS ON 31.03.2007. THE EXPLANATION OF THE LEGAL HEIR O F THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND THE LEGAL HEIR OF THE ASSESSEE MADE A SURRENDER OF THE AMOUNT OF `3,00,00 0/- DURING ASSESSMENT PROCEEDINGS. MERELY BECAUSE THE EXPLANA TION OF THE LEGAL HEIR OF THE ASSESSEE IN THIS REGARD COULD NOT BE AC CEPTED BY THE ASSESSING OFFICER, IT DOES NOT FOLLOW THAT THE ASSE SSEE WAS LIABLE TO PENALTY U/S 271(1)(C) OF THE ACT. IN THE ABSENCE O F ANY MATERIAL BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO JUSTI FY THE IMPOSITION OF PENALTY, I HOLD THAT PENALTY U/S 271(1)(C) OF THE A CT WAS LEVIED FOR NO VALID REASON, WHICH IS ACCORDINGLY, CANCELLED, AND THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 8 TH SEPTEMBER, 2015. SD/- (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, LATE SMT. KAMLESH SANT, (THROUGH LEGAL HEIR SHRI RAKESH SANT), (THROUGH LEGAL HEIR SHRI RAKESH SANT), (THROUGH LEGAL HEIR SHRI RAKESH SANT), (THROUGH LEGAL HEIR SHRI RAKESH SANT), E EE E- -- -4/15, JHANDEWALAN EXTENSION, NEW DELHI. 4/15, JHANDEWALAN EXTENSION, NEW DELHI. 4/15, JHANDEWALAN EXTENSION, NEW DELHI. 4/15, JHANDEWALAN EXTENSION, NEW DELHI. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -38(4), 38(4), 38(4), 38(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR