Rathi Pragati Steel Manufacturing Ltd., New Delhi V. ACIT, New Delhi

ITA 1533/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7137 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 18-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Assessee Lawyers: VINOD AGRAWAL
• Keywords: Depreciation; Business expenditure; Opportunity of being heard; Principle of natural justice; Wrong claim; Bonafide mistake
• Section: 43B; 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F: NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT, AND SHRI CHANDRA MOHAN GARG, JUDIC IAL MEMBER ITA NO. 1533/DEL /2012 ASSESSMENT YEAR: 2008-9 M/S RATHI PRAGATI STEELS MANUFACTURING LTD VS. TH E A.C.I.T 1356(II), 5811, LONI ROAD CIRCLE -15(1) SHAHDRA, DELHI NEW DELHI PAN : AADCR 6902 J [APPELLANT] [RESPONDENT] DATE OF HEARING : 18.05.2016 DATE OF PRONOUNCEMENT : 18.07.2016 ASSESSEE BY : SHRI VINOD AGRAWAL , CA REVENUE BY : SHRI AMRIT LAL, SR- DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-XVIII, NEW DELHI DATED 09/02/20 12 PASSED IN FIRST APPEAL NO. 24/11-12 FOR A.Y 2008-09 VIDE WHIC H PENALTY OF RS. 1,19,560/- IMPOSED BY THE AO U/S 271(1)(C) OF T HE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] HA S BEEN UPHELD. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS EIGH T GROUNDS OF APPEAL, THE MAIN EFFECTIVE GROUNDS CHALLENGING T HE DENIAL OF OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPHO LDING THE 2 ITA NO. 1533/DEL/2012 2 PENALTY HAVE BEEN STATED IN GROUND NOS. 1 AND 4 AND OTHER GROUNDS ARE SUPPORTIVE TO THESE MAIN GROUNDS. GROUN D NOS. 1 AND 4 READ AS UNDER: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED W HEN HE HAS SUSTAINED THE PENALTY AMOUNT OF RS. 1,19,860/- IMPO SED BY LD. ASSESSING OFFICER U/S 271 (1)(C) OF THE INCOME TAX ACT, 1961 BECAUSE THE ASSESSING OFFICER DID NOT DISCUSS THE FINDING T O REACH ON HIS CONCLUSION OF THE FACT THAT IN WHAT MANNER APPELLAN T COMPANY CONCEALED THE PARTICULARS OF ITS INCOME. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE IMPUGNED ORDER IS ARBITRARY AND ILLEGAL IN AS M UCH AS IT IS SUFFERING FROM DENIAL OF RULES OF NATURAL JUSTICE. LD. COMMISSIONER OF INCOME TAX(APPEALS) FAILED TO GRANT FAIR OPPORTUNIT Y OF HEARING AS CONTEMPLATED BY THE PROVISIONS OF SECTION 271 (1) ( C) AND THE RULES OF NATURAL JUSTICE. GROUND NO. 4 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PER USED THE RELEVANT MATERIAL ON RECORD. THE LD. AR SUBMITTE D THAT THE ORDER OF THE CIT(A) IS ARBITRARY AND ILLEGAL IN AS MUCH AS IT IS SUFFERING FROM DENIAL OF NATURAL JUSTICE AS THE ASS ESSEE COMPANY FILED WRITTEN SUBMISSIONS BEFORE THE CIT(A) ON 6.2. 2012 AND THE CIT(A) OUGHT TO HAVE GRANTED AN OPPORTUNITY FOR PRE SENTING HIS ARGUMENTS, WHICH SHE FAILED TO DO SO, WHICH IS CLEA R VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE LD. AR FURTHER C ONTENDED THAT 3 ITA NO. 1533/DEL/2012 3 THE CIT(A) WRONGLY ASSUMED THAT THE ASSESSEE COMPAN Y REQUESTED TO DECIDE ITS APPEAL ON THE BASIS OF WRITTEN SUBMIS SIONS ONLY AND AFTER FILING WRITTEN SUBMISSIONS ON 6.2.2012 WITHOU T AFFORDING OPPORTUNITY OF BEING HEARD, THE CIT(A) PASSED IMPUG NED ORDER ON 9.2.2012 I.E. ONLY AFTER TWO DAYS. 4. PER CONTRA, THE LD. DR POINTED OUT THAT AFTER FI LING WRITTEN SUBMISSIONS IN THE OFFICE OF THE CIT(A) BY DAK, THE ASSESSEE REQUESTED THAT THE CASE MAY BE DISPOSED OFF AS PER MATERIAL AVAILABLE ON RECORD AND IN THIS SITUATION, THE FIRS T APPELLATE AUTHORITY WAS QUITE JUSTIFIED IN DECIDING THE APPEA L AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD INTER ALIA. THE LD. DR FINALLY SUBMITTED THAT IN THIS SITUATION, THE FI RST APPELLATE AUTHORITY HAD NO OPTION BUT TO DECIDE THE APPEAL EX PARTE, THEREFORE, THERE WAS NO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THUS THE ALLEGATION OF THE ASSESSEE IN THIS REG ARD MAY KINDLY BE REJECTED. 5. FROM THE RELEVANT OPERATIVE PARA 4.1 TO THE END OF THE IMPUGNED ORDER, WE OBSERVE THAT THE CIT(A) HAS REPR ODUCED WRITTEN SUBMISSIONS OF THE ASSESSEE AND THEREAFTER NOTED THE FACTS REGARDING IMPOSITION OF PENALTY BUT THERE IS NO SPECIFIC DISCUSSION REGARDING ALL THE THREE ISSUES ON WHICH PENALTY HAS BEEN IMPOSED BY THE ASSESSEE I.E. DONATION PAID BUT ADDED BY THE 4 ITA NO. 1533/DEL/2012 4 AO IN THE COMPUTATION OF INCOME, EXCESS DEPRECIATIO N CLAIM AND DEDUCTION DENIED AS PER CLAUSE 32(B) OF FORM 3CD. WE FURTHER NOTE THAT THE CIT(A) FILED WRITTEN SUBMISSIONS THRO UGH DAK IN THE OFFICE OF THE CIT(A) ON 6.2.2012 BUT THE CIT(A) DID NOT ALLOW OPPORTUNITY TO EXPLAIN THE STAND OF THE ASSESSEE TA KEN IN THE GROUNDS OF APPEAL. THEREFORE, WE ARE SATISFIED THA T THE CIT(A) PASSED THE IMPUGNED ORDER VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. GROUND NO. 1 6. APROPOS GROUND NO. 1, THE LD. AR POINTED OUT THA T THE CIT(A) HAS ERRED IN SUSTAINING THE PENALTY IMPOSED U/S 271(1(C) OF THE ACT BECAUSE THE AO DID NOT DISCUSS AND RECORD A NY FINDING TO REACH TO A CONCLUSION OF THE FACT THAT IN WHAT MANN ER THE ASSESSEE COMPANY CONCEALED THE PARTICULARS OF ITS I NCOME. THE LD. AR FURTHER POINTED OUT THAT THE ASSESSEE WAS NO T ALLOWED TO EXPLAIN HIS CASE BEFORE THE AO AND THE AO WRONGLY O BSERVED THAT THE ASSESSEE HAS NOT FILE ANY REPLY IN RESPECT OF A DDITIONS MADE AND HE WAS QUITE UNJUSTIFIED IN LEVYING PENALTY ON THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE FILE D DETAILED WRITTEN SUBMISSIONS ON 6.2.2012 AND THE SAME HAVE B EEN REPRODUCED BY THE CIT(A) IN THE IMPUGNED ORDER AT P ARAS 3 AND 4. THE LD. AR FURTHER POINTED OUT THAT AFTER REPRODUCI NG THE 5 ITA NO. 1533/DEL/2012 5 SUBMISSIONS OF THE ASSESSEE, THE CIT(A) SIMPLY NOTE D THE FACTS LEADING TO IMPOSITION OF PENALTY AND THEREAFTER WIT HOUT DEALING WITH ALL THE THREE ISSUES INDEPENDENTLY HELD THAT T HE ASSESSEE HAS MADE WRONG CLAIMS IN HIS RETURN OF INCOME AND CLAIM S WHICH ARE CLEARLY NOT ADMISSIBLE AS PER PROVISIONS OF THE ACT ATTRACT PENALTY. 7. REITERATING ITS SUBMISSIONS MADE BEFORE THE CIT( A), THE LD. AR SUBMITTED THAT THE EXPENDITURE ON DONATION WAS N OTHING BUT ABSOLUTE BUSINESS EXPENDITURE WHICH WAS DULY DECLAR ED AS PER INCOME-TAX RETURN FILED AND THUS THE IMPOSITION OF PENALTY IN RESPECT OF SAID AMOUNT OF DONATION IS ERRONEOUS AND UNJUSTIFIED. THE LD. AR FINALLY POINTED OUT THAT THE CLAIM OF DO NATION WAS NOT ALLOWED AS THE RECIPIENT DONE WAS NOT ENJOYING THE EXEMPTION U/S 80G OF THE ACT AND THE AMOUNT OF DONATION WAS P AID TO NON ELIGIBLE INSTITUTIONS IN PURSUANCE OF BUSINESS NEED S OF THE ASSESSEE AND MERELY BECAUSE THE SAME WAS NOT ALLOWE D TO THE ASSESSEE, PENALTY CANNOT BE IMPOSED BY ALLEGING THA T THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED PARTICULARS OF ITS INCOME. 8. ON THE ISSUE OF DEPRECIATION, THE LD. AR POINTED OUT THAT DISALLOWANCE OF DEPRECIATION AS PER THE ASSESSMENT ORDER WAS ON THE BASIS OF ARITHMETICAL ERROR IN CALCULATION OF D EPRECATION AND 6 ITA NO. 1533/DEL/2012 6 ARITHMETICAL ERROR OF CALCULATING OF DEPRECATION FO R FULL YEAR INSTEAD OF SIX MONTHS CANNOT BE SAID TO BE CONCEALM ENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME AND HENCE PENALTY ON THIS COUNT CANNOT BE IMPOSED. 9. ON THE ISSUE OF DEDUCTION, WHICH WAS CLAIMED BY THE ASSESSEE COMPANY ON ACCOUNT OF VAT PAID TO THE SALE S TAX DEPARTMENT, THE LD. AR SUBMITTED THAT PROVISIONS OF SECTION 43B OF THE ACT MAKE THE ASSESSEE ENTITLED TO CLAIM THE SAID DEDUCTION. THE AUDITOR OF THE ASSESSEE COMPANY IN HIS TAX AUDIT REPORT ISSUED U/S 44AB OF THE ACT SPECIFICALLY GIVE S A NOTE ON THE SUBJECT MATTER, WHICH IS AVAILABLE IN FORM 3CD. TH E SAID AMOUNT WAS DISALLOWED BY THE LD. AO WITHOUT CONSIDERING TH E PROVISIONS OF LAW WHEREAS THE ASSESSEE COMPANY PLACED ON RECOR D THE COMPLETE DETAILS OF STATUTORY PAYMENT MADE TO SALES TAX DEPARTMENT WHICH IS ALSO AVAILABLE ON THE RECORD OF THE AO. THE LD. AR VEHEMENTLY POINTED OUT THAT WHEN ALL THE DET AILS OF PAYMENTS OF VAT HAS BEEN DISCLOSED IN FORM 3CD REPO RT, THEN THE ALLEGATION OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME CANNOT BE LEVEL LED AGAINST THE ASSESSEE. 10. REPLYING TO THE ABOVE, THE LD. DR STRONGLY SU PPORTED THE PENALTY ORDER AS WELL AS THE IMPUGNED ORDER OF THE CIT(A) AND 7 ITA NO. 1533/DEL/2012 7 CONTENDED THAT THE ASSESSEE HAS BEEN UNABLE TO JUST IFY ITS CLAIM OF FILING OF WRONG PARTICULARS OF INCOME ON ALL THR EE COUNTS AND IT IS NOT A CASE OF BONAFIDE MISTAKE ON THE PART OF TH E ASSESSEE. THE LD. DR VEHEMENTLY POINTED OUT THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME, THEREFORE, INTENT ION OF THE ASSESSEE WAS TO EVADE TAX AND MENS REA THEREIN ARE CLEARLY ESTABLISHED. THEREFORE, THE AO WAS CORRECT IN IMPO SING PENALTY WHICH WAS RIGHTLY UPHELD BY THE CIT(A). 11. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUB MISSIONS, ON THE ISSUE OF DONATION, WE NOTE THAT NEITHER THE ASS ESSEE NOR THE CIT(A) HAS BROUGHT OUT ANY FACT THAT THE CLAIM OF T HE ASSESSEE TOWARDS DONATION WAS BOGUS OR NOT CORRECT. WE FURT HER OBSERVE THAT MERELY BECAUSE THE CLAIM OF DONATION WAS DISMI SSED BY THE AO ON ACCOUNT OF NON ELIGIBILITY AND NON REGISTRATI ON OF RECIPIENT DONE U/S 80G OF THE ACT, IT CANNOT BE SAID THAT THE ASSESSEE CONCEALED ITS PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF INCOME ON THIS COUNT. FURTHER, ON T HE ISSUE OF EXCESS CLAIM OF DEPRECATION, WE ARE SATISFIED THAT THE DISALLOWANCE OF DEPRECIATION HAS BEEN MADE BY THE A O ON THE BASIS OF ARITHMETICAL ERROR IN THE CALCULATION OF D EPRECATION WHICH LEADS TO DISALLOWANCE CANNOT BE SAID TO BE CO NCEALMENT OF INCOME OF FILING OF INACCURATE PARTICULARS OF INCOM E AND ON THIS COUNT PENALTY U/S 271(1)(C) OF THE ACT CANNOT BE IM POSED. 8 ITA NO. 1533/DEL/2012 8 12. ON THE ISSUE OF DEDUCTION OF RS. 1,83,409/-, TH E CLAIM OF THE ASSESSEE ON ACCOUNT OF VAT PAID TO SALES TAX DEPARTMENT, THE LD. DR COULD NOT CONTROVERT THIS FACT THAT THE ASSESSEE FURNISHED AL L DETAILS ON THIS ISSUE IN THE REPORT IN FORM 3CD AND STATUTORY PAYMENT MADE T O SALES TAX DEPARTMENT WHICH WAS DISALLOWED ON TECHNICAL GROUND S CANNOT BE HELD AS BASIS OF IMPOSING PENALTY U/S 271(1)(C) OF THE ACT AS THERE IS NO ALLEGATION BY THE AO THAT THE SAID CLAIM IS BOGUS OR BASELESS AND IT IS ALSO NOT THE CASE OF THE AO THAT THE ASSESSEE HAS NOT PAID VAT TO THE SA LES TAX DEPARTMENT. 13. BEFORE WE CONSIDER THE FACTUAL MATRIX OF THIS C ASE TO ASCERTAIN AS TO WHETHER IN THE EYES OF THE PROVISIONS OF THE ACT AS EXPLAINED BY NUMEROUS JUDICIAL PRONOUNCEMENTS, PENALTY CAN BE LEVIED IN T HIS CASE OR NOT, WE WOULD LIKE TO DISCUSS IN NUT SHELL THE RELEVANT LEGAL POS ITION REGARDING LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AND AS TO HOW AND WHEN SUCH PENALTY CAN BE LEVIED UNDER THIS SECTION. THERE ARE NO TWO OPI NIONS ABOUT THE SETTLED POSITION OF LAW THAT REGULAR ASSESSMENT PROCEEDING S AND PENALTY PROCEEDINGS ARE TWO ENTIRELY DIFFERENT SUBJECTS WHI CH OPERATE IN DISTINCT AND SEPARATE SPHERES SO MUCH SO THAT ENTIRELY DIFFE RENT PARAMETERS ARE APPLICABLE FOR MAKING QUANTUM ADDITION AND FOR LEVY ING PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THERE CAN BE NO DISP UTE WITH REGARD TO THE POSITION OF LAW THAT UNDER SECTION 271(1)(C) PENALT Y CAN BE LEVIED ONLY IF EITHER THE ACT OF 'CONCEALMENT OF PARTICULARS OF I NCOME' OR 'FURNISHING OF INACCURATE PARTICULARS OF INCOME' IS FOUND TO HAVE BEEN COMMITTED BY THE ASSESSEE. THESE ARE TWO DIFFERENT OMISSIONS OR DEFA ULTS ALBEIT THEY REFER TO 9 ITA NO. 1533/DEL/2012 9 DELIBERATE ACT ON THE PART OF THE ASSESSEE. A MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERATE ACT OF EITHER SUP PRESSIO VERI OR SUGGESTIO FALSY. BY THE MERE REASON OF SUCH CONCEALMENT OR OF FURNISHING OF INACCURATE PARTICULARS ALONE, THE ASSESSEE DOES NOT , IPSO FACTO, BECOME LIABLE TO A PENALTY. IMPOSITION OF PENALTY IS NOT AT ALL AUTOMATIC. MEANING THEREBY, ANY ADDITION IN QUANTUM WOULD NOT LEAD TO AUTOMATIC LEVY OF PENALTY AND THIS IS ALSO TRUE IN RESPECT OF FURNISH ING OF INACCURATE PARTICULARS OF INCOME. NOT ONLY IS THE LEVY OF PENALTY DISCRETI ONARY IN NATURE BUT THE DISCRETION HAS TO BE EXERCISED KEEPING THE RELEVANT FACTORS IN MIND AND THE APPROACH OF THE TAXMAN MUST BE FAIR AND OBJECTIVE. THIS SUBJECT HAS BEEN A MATTER OF GREAT CONTROVERSY. FINALLY, AFTER REFERR ING TO THE DECISIONS IN THE CASE OF DILIP N. SHROFF VS JCIT & ANOTHER, 291 ITR 519, UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS [2008] 13 SCC 369, AS WELL AS UNION OF INDIA VS RAJASTHAN SPG. & WVG. MILLS [2009] 13 SCC 448, T HE HON'BLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS PVT. L TD, 322 ITR 158, HAS RECENTLY HELD AS UNDER: A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD 'PARTICULARS' USED IN SECTION 2 71(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE C ANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORDER TO EXP OSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY 10 ITA NO. 1533/DEL/2012 10 PROVISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGI NATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULAR S ARE FOUND TO BE INACCURATE, THE LIABILITY WOULD ARISE. TO ATTRACT P ENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRE CT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FA LSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271 (1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FU RNISHING INACCURATE PARTICULARS. 14. REVERTING TO THE ABOVE NOTED FACTS AND CIRCUMST ANCES OF THE CASE, WE ARE SATISFIED THAT THE PENALTY U/S 271(1)(C) OF THE ACT ON THE ISSUE OF VAT PAID TO THE SALES TAX DEPARTMENT AND DISALLOWED BY THE AO CANNOT BE IMPOSED AND THUS EXPLANATION OF THE ASSESSEE IN THI S REGARD CANNOT BE BRUSHED ASIDE AT THE THRESHOLD AND ACTION OF THE AO AND IMPUGNED ORDER ON THIS ISSUE IS NOT SUSTAINABLE. ON THE BASIS OF FOR EGOING DISCUSSION, TO REACH TO A LOGICAL CONCLUSION THAT THE CIT(A) DID NOT PRO VIDE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASSED AN ORDER WIT HOUT PROPER ADJUDICATION AND SHE SIMPLY UPHELD THE PENALTY ORDER WHICH IS NO T A PROPER AND JUSTIFIED APPROACH OF A FIRST APPELLATE AUTHORITY. 11 ITA NO. 1533/DEL/2012 11 15. ON MERITS, AS PER DISCUSSION IN THE EARLIER PAR T OF THIS ORDER, WE ARE INCLINED TO HOLD THAT THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE ACT AND UPHELD BY THE CIT(A) IS NOT SUSTAINABLE ON ALL THE THREE COUNTS AND THUS WE DEMOLISH THE SAME AND THE AO IS DIRECTED TO DELE TE THE ENTIRE PENALTY. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.07 .2016. SD/- SD/- (G.D. AGARWAL) (C.M. GARG) VICE PRESIDENT JUDICIAL MEMBER DATED: 18 TH JULY, 2016. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI