M/s. Shree Nath Shares Pvt. Ltd, New Delhi V. ITO, New Delhi

ITA 1448/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8272 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 13-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Keywords: TDS
• Section: 271(1)(c)

Judgement Text

ITA NO.1448/DEL./2009 (A.Y. : 2004-05) IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE HONBLE SR. VICE PRESIDENT SHRI R.P. GARG A ND HONBLE JUDICIAL MEMBER, SHRI RAJPAL YADAV ITA NO.1448/DEL./2009 (ASSESSMENT YEAR : 2004-05) M/S SHREE NATH SHARES PVT. LTD., VS. ITO, WARD 8( 3), 54, PRAKRITI MARG, NEW DELHI. SULTAN FARMS, MEHRAULI, NEW DELHI. (PAN/GIR NO.AAGCS3430B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAMESH GOYAL, CA REVENUE BY : MS. NIRUPAMA KOTRU, SR. DR ORDER PER R.P. GARG, SR.VP THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) UPHOLDING THE PENALTY U/S 271(1)(C) OF THE I.T. ACT, AMOUNTING TO RS.1,68,888 ON COMMISSION RECEIVED AGAINST PURCHASE OF FLATS AND AN ADDITION OF RS.20, 000 ON ACCOUNT OF TOUR AND TRAVEL EXPENSES. 2. AFTER HEARING THE PARTIES, WE FIND THAT INSOFAR AS THE PENALTY ON THE ADDITION OF RS.20,000 IS CONCERNED, NEITHER THE ASSESSING OFFIC ER HAS LEVIED ANY PENALTY AND THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS ALSO DIREC TED THE ASSESSING OFFICER TO EXCLUDE THE SAME. THEREFORE, THE GROUND TO THIS EX TENT IS MIS-CONCEIVED. 3. AS REGARD THE ADDITION OF RS.1,68,888, WE FIND THAT THE ASSESSEE HAS PURCHASED 4 FLATS FROM DLF CONVENIENCE ENTERPRISES PVT. LTD., HE BEING SIMPLY A BOOKING AGENT. THE SAID AGENT GAVE COMMISSION TO THE ASSESSEE FOR BOOKING 4 FLATS THROUGH IT. THE ASSESSEE INSTEAD OF SHOWING IT AS INCOME HAS REDUCE D THE SAME FROM THE COST OF THE FLATS. THE ASSESSING OFFICER, HOWEVER, BROUGHT THE SAME AS INCOME AND LEVIED PENALTY THEREON ALSO WHICH WAS UPHELD BY THE COMMISSIONER OF INCOME -TAX (APPEALS) BY OBSERVING THAT 2 THE SAID INCOME WAS ALTOGETHER OF DIFFERENT CHARACT ER, ALTHOUGH RECEIVED IN CONNECTION WITH THE 4 FLATS. THE TDS HAS BEEN DEDUCTED FROM T HE COMMISSION RECEIVED BY THE ASSESSEE, WHICH WAS CLAIMED AS A DEDUCTION IN THIS YEARS RETURN. THE COMMISSIONER OF INCOME-TAX (APPEALS), THEREFORE, HELD THAT IT WAS A N INCOME HAVING NOT SHOWING THE SAME, THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. 4. WE HAVE HEARD THE PARTIES AND CONSIDERED THE RIV AL SUBMISSIONS. EVEN THE ASSESSING OFFICER SAYS THAT WHILE WORKING OUT THE C OST OF FLATS THE ASSESSEE HAS MADE A NUMBER OF ADJUSTMENT INCLUDING DISCOUNT, REBATE, IN TEREST ETC. THE ASSESSEE HAS PURCHASED THE FLATS, THOUGH RECEIVED COMMISSION THR OUGH MIDDLE MAN BECAUSE IT WAS PURCHASED THROUGH MIDDLEMAN. INSOFAR AS THE ASSESS EE IS CONCERNED, IT WAS A REDUCTION IN PRICE OF THE FLATS AND MAY NOT BE STRICTLY THE INCO ME OF THE ASSESSEE FORM COMMISSION. IN ANY CASE, THE MATTER IS NOT FREE FROM DOUBT AND TO GUESS THE ASSESSEE TO FURNISH INACCURATE PARTICULARS OF HIS INCOME WOULD NOT BE JUSTIFIED. IN OUR OPINION, THE ASSESSEE HAS NOT CONCEALED THE PARTICULARS OF INCOME AND IS MERELY A REJECTION OF THE CLAIM OF THE ASSESSEE . IN THE CIRCUMSTANCES, IN OUR OPINION, THE PENALTY I S NOT JUSTIFIED AND IS ACCORDINGLY DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 6. ORDER PRONOUNCED IN OPEN COURT ON 18.06.2009. (RAJPAL YADAV) (R.P. GARG) JUDICIAL MEMBER SR. VICE PRESIDENT DATED: JUNE 18, 2009. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XI, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. AR/ITAT 3