Amit Scan Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 1424/DEL/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3786 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH JAIN
• Keywords: Opportunity of being heard
• Section: 68; 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES A : DELHI BEFORE SHRI BHAVNESH SAINI, J.M. AND SHRI L.P. SAHU, A.M. ITA.NO.3486/DEL./2011 & ITA.NO.1424/DEL./2013 ASSESSMENT YEAR 2007-2008 AMIT SCAN PVT. LTD., 622/IDI, GADODIA ROAD, UPPER ANAND PARBAT INDUSTRIAL AREA, NEW DELHI. PAN AADCA2045F VS. THE ITO, WARD-1(4), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI RAKESH JAIN, ADVOCATE AND SHRI GURJEET SINGH, C.A. FOR REVENUE : SHRI AMIT KATOCH, SR.D.R. DATE OF HEARING : 13.02.2019 DATE OF PRONOUNCEMENT : 19.02.2019 ORDER PER BHAVNESH SAINI, J.M. BOTH THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A)-IV, DELHI, DATED 24.11.2010, FOR THE A.Y. 2007-2008 AND DATED 04.12.2012 FOR THE A.Y. 2007-2008, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2 ITA.NO.3486/DEL./2011 & ITA.NO. 1424/DEL./2013 AMIT SCAN PVT. LTD., NEW DELHI 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 3. ITA.NO.3486/DEL./2011 WAS DISMISSED FOR DEFAULT. HOWEVER, M.A. OF THE ASSESSEE WAS ALLOWED AND APPEAL WAS RE-FIXED FOR HEARING ON MERITS. APPEAL FILE IS RECONSTRUCTED. 4. IN ITA.NO.3486/DEL./2011, THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED ONLY ON GROUND NO.2 AND DID NOT PRESS REMAINING GROUNDS. THE REMAINING GROUNDS OF APPEAL OF THE ASSESSEE ARE ACCORDINGLY DISMISSED AS NOT PRESSED. 5. ON GROUND NO.2, THE ASSESSEE CHALLENGED THE ADDITION UNDER SECTION 68 OF THE I.T. ACT IN A SUM OF RS.4,42,166/- ON ACCOUNT OF SUNDRY CREDITORS. THE A.O. NOTED THAT ASSESSEE HAS SHOWN THE ABOVE SUNDRY CREDITOR AS AGAINST PURCHASE OF RS.9,20,518/- DURING THE YEAR. NO CONFIRMATION WAS FILED, THEREFORE, IT WAS TREATED AS UNEXPLAINED LIABILITY. THE A.O. ACCORDINGLY MADE THE ADDITION. THE LD. CIT(A) CONFIRMED THE ADDITION. 3 ITA.NO.3486/DEL./2011 & ITA.NO. 1424/DEL./2013 AMIT SCAN PVT. LTD., NEW DELHI 6. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO PAGE-10 OF THE PB TO SHOW THAT OUT OF THE ABOVE AMOUNT, THERE IS OPENING BALANCE OF RS.2,04,329/- AS ON 01.04.2006 AND SUBMITTED THAT ADDITION CANNOT BE MADE ACCORDINGLY. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE A.O. SINCE THIS AMOUNT OF RS.2,04,329/- IS OPENING BALANCE, THEREFORE, THE A.O. SHOULD RE-DECIDE THIS ISSUE BY VERIFYING THE FACTS OF THE CASE. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS GROUND TO THE FILE OF A.O. WITH A DIRECTION TO RE-DECIDE THE ISSUE AS PER LAW, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, ITA.NO.3486/DEL./2011 OF THE ASSESSEE ALLOWED PARTLY FOR STATISTICAL PURPOSES. ITA.NO.1424/DEL./2013 : 9. THE LD. CIT(A) CONFIRMED THE LEVY OF PENALTY ON ADDITION OF RS.4,42,166/- BECAUSE THE ADDITION HAS ATTAINED FINALITY. HOWEVER, WE HAVE RESTORED THIS ISSUE TO THE FILE OF 4 ITA.NO.3486/DEL./2011 & ITA.NO. 1424/DEL./2013 AMIT SCAN PVT. LTD., NEW DELHI A.O, THEREFORE, NO PENALTY IS LEVIABLE AT THIS STAGE. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY AT THIS STAGE. HOWEVER, THE A.O. IS AT LIBERTY TO TAKE STEPS FOR LEVY OF THE PENALTY, IF SO ADVISED AS PER LAW, AFTER PASSING THE ORDER ON QUANTUM. 10. IN THE RESULT, ITA.NO.1424/DEL./2013 OF THE ASSESSEE IS ALLOWED. 11. TO SUM-UP, ITA.NO.3486/DEL./2011 OF THE ASSESSEE IS ALLOWED PARTLY FOR STATISTICAL PURPOSES AND ITA.NO.1424/DEL./2013 OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 19 TH FEBRUARY, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT A BENCH, DELHI 6. GUARD FILE. 5 ITA.NO.3486/DEL./2011 & ITA.NO. 1424/DEL./2013 AMIT SCAN PVT. LTD., NEW DELHI // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI