Kiran Kheria, New Delhi V. ITO, Ward-42(5), New Delhi

ITA 1531/DEL/2022

AI Insights

The case involves two appeals by the assessee, Smt. Kiran Kheria, against orders from the Ld. CIT(A) (National Faceless Appeal Centre), New Delhi for the assessment year 2016-17. The first appeal (ITA No.1531/Del/2022) concerns a penalty of Rs.10,000 under section 271(1)(b) of the Income Tax Act, which was sustained by the Ld. CIT(A). The assessee had opted to settle the dispute under the Vivad Se Vishwas Scheme, leading to the withdrawal of this appeal. The second appeal (ITA No.1532/Del/2022) challenges the quantum of income assessed, which included additions under sections 56(2)(vin)(b) and 68 of the Act. The Ld. CIT(A) had dismissed this appeal, mistakenly believing the assessee had opted for the Vivad Se Vishwas Scheme. The tribunal found this dismissal to be in error and remitted the case back to the Ld. CIT(A) for a decision on the merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121798 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 24-01-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 29-06-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘C’: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA Nos.1531 & 1532/DEL/2022 [Assessment Year: 2016-17] Smt. Kiran Kheria, 11, Road No.19, East Punjabi Bagh, Delhi-110026 Vs Income Tax Officer, Ward-42(5), New Delhi PAN-AFXPA2552B Assessee Revenue Assessee by Sh. Narendra Arora, CA Revenue by Sh. Anuj Garg, Sr. DR Date of Hearing 25.01.2023 Date of Pronouncement 07.02.2023 ORDER PER SHAMIM YAHYA, AM, These are appeals by the assessee against two orders of the Ld. CIT(A) (National Faceless Appeal Centre), New Delhi for the same assessment years. 2. ITA No.1531/Del/2022 is against the order, wherein, penalty u/s 271(1)(b) of the Act amounting to Rs.10,000/- has been sustained. 3. At the outset, the ld. Counsel for the assessee submitted that penalty u/s 271(1)(b) was levied in this case amounting to Rs.10,000/- which was confirmed by the Ld. CIT(A). The Ld. Counsel for the assessee submitted that the assessee has opted to settle the dispute through 2 ITA Nos.1531 & 1532/Del/2022 Vivad Se Vishwas Scheme for this purpose. He has referred to necessary Form No.5, dated 27.10.2021 issued by the Income Tax Department. 4. Considering the above factual circumstances, when the assessee has opted to settle the dispute under Vivad Se Vishwas Scheme and necessary Form 5 issued by the Department, the assessee is entitled to withdraw the appeal, we accept the same and the appeal of the assessee is dismissed as withdrawn. 5. ITA No.1532/Del/2022 is quantum appeal for the same Assessment Year 2016-17. The grounds of appeal of ITA No.1532/Del/2022 reads as under:- 1. On the facts and circumstances of the case, the Ld CIT(A) has erred in dismissing the appeal of the appellant by considering the same being covered by declaration under Direct Tax Vivad Se Vishwas Scheme 2020 ignoring the fact that the assessee had never opted for resolution of dispute covered by the present appeal under the above scheme. 2. On the facts and circumstances of the case, the authorities below have clearly erred in not considering the facts of the case in proper prospective and also the submission of the appellant that the additions of Rs.32,00,000/- made by the AO w/s 56(2)(vin)(b) of IT Act were not covered by the ambit of limited scrutiny for which the case was selected and the AO did not comply with the conditions to convert the case from limited scrutiny to complete scrutiny. Therefore, the above addition needs to be deleted. 3. The Ld. CIT(A) has erred both in law and in facts of the case in upholding the addition of Rs.1,52,000/- u/s 68 of IT Act ignoring the fact that the appellant is a individual and not required to maintain books of account and therefore under such circumstances no addition can be made us 68 of IT Act. 3 ITA Nos.1531 & 1532/Del/2022 4. The Ld CIT(A) has erred both in law and in facts of the case in upholding the addition of Rs. 1,52,000/- u/s 68 of IT Act ignoring the fact that the appellant has duly explained the source of cash deposits. Therefore, the addition made u/s 68 need to be deleted. 5. Having regard to these facts, the appellate order under appeal needs be quashed and the cost be awarded to the appellant for the agony, cost and inconvenience caused due to misapplication of facts. 6. The appellant craves leave to add, delete, modify / amend the above grounds of appeal with the permission of the Hon'ble appellate authority.” 6. In this case, in the assessment order framed u/s 143(3) of the Act, income from other sources was added amounting to Rs.33,52,000/-. 7. Against the above order, the assessee appealed before the Ld. CIT(A). 8. The Ld. CIT(A) in mistaken belief that the assessee has opted to settle dispute under Vivad Se Vishwas Scheme, treated the appeal as in- fructuous. 9. Now, the assessee has filed appeal against the above order before us. 10. We have heard both the parties and perused the records. We find that the Ld. CIT(A) has wrongly dismissed the appeal as in-fructuous by noting that the assessee has opted to settle the dispute under Vivad Se Vishwas Scheme which as per the assessee is incorrect. Therefore, we deem it proper to remit the issue to the file of the Ld. CIT(A) to pass a 4 ITA Nos.1531 & 1532/Del/2022 proper order on merits of the case. The Ld. DR is fairly agreed with the above proposition. 11. In the result, ITA No.1531/Del/2022 is dismissed as withdrawn and ITA No.1532/Del/2022 is allowed for statistical purposes. Order pronounced in the open court on 07 th February, 2023. Sd/- Sd/- [ANUBHAV SHARMA] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi; Dated: 07.02.2023. f{x~{tÜ f{x~{tÜf{x~{tÜ f{x~{tÜ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi