M/s. Sai Baba Habitat Pvt. Ltd., Karnal V. ITO, New Delhi

ITA 1563/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4567 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 16-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK KUMAR SR DR
• Section: 271(1)(c); 27

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI , ! '# . $ , %& ' % BEFORE MS. SUSHMA CHOWLA, VICE PRESID ENT & DR. B.R.R. KUMAR, ACCOUNTANT M EMBER !. / ITA NO. 1563/DEL/2017 )* + + / ASSESSMENT YEAR: 2011-12 M/S SAI BABA HABITAT PVT. LTD., 173, SFS FLATS, RAJOURI APPTS, RAJOURI GARDEN, NEW DELHI PAN-AAOCS5479G ............. ,- /APPELLANT VS. ITO, WARD-7(1), NEW DELHI .. ./,- /RESPONDENT ,- 0 1 % /APPELLANT BY : NONE ./,- 0 1 % /RESPONDENT BY : SH. ABHISHEK KUMAR, SR. DR *2 0 3& / DATE OF HEARING : 03.02.2020 45 0 3& / DATE OF PRONOUNCEMENT: 21 .02.2020 %6 / ORDER PER SUSHMA CHOWLA, VP THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CI T(A)-22, NEW DELHI, DATED 20.01.2017 RELATING TO ASSESSMENT YEAR 2011-12 AGAINST PENALTY LEVIED U/S 271(1)(C) OF THE ACT. !. / ITA NO:-1563/DEL/2017 2 2. AN ADJOURNMENT APPLICATION WAS MOVED BUT THE PER SON APPEARING HAD NO AUTHORITY OF LETTER TO APPEAR. WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED AND HENCE WE PRO CEED TO DECIDE THE SAME AFTER HEARING LEARNED DR FOR THE REVENUE AND E X-PARTE QUA THE ASSESSEE. THE ONLY ISSUE RAISED IN THE PRESENT APPE AL IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 3. WE HAVE HEARD THE LEARNED DR FOR THE REVENUE AND PERUSED THE RECORD. THE PERUSAL OF THE ASSESSMENT ORDER REFLEC TS THE AO TO HAVE MADE ADDITION OF RS. 1.58 CRORES ON ACCOUNT OF UNEXPLAIN ED CASH CREDITS AND RS. 11,50,000/- ON ACCOUNT OF SHARE APPLICATION MON EY. WHILE MAKING THE AFORESAID ADDITIONS, THE AO HAS FAILED TO RECORD AN Y SATISFACTION FOR INITIATING THE PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) OF THE INCOME TAX ACT. THEREAFTER, THE AO PASSES THE PENALTY ORDE R UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PAR TICULARS OF INCOME AS PER THE PROVISIONS OF SECTION 271(1)(C). 4. PENALTY FOR CONCEALMENT IS LEVIABLE EITHER FOR C ONCEALING THE INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCO ME. THE AO WHILE INITIATING THE SAME HAS TO RECORD SATISFACTION IN T HIS REGARD. UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT, IT IS I NCUMBENT UPON THE ASSESSING OFFICER TO RECORD SATISFACTION TO THE EFF ECT THAT THE ASSESSEE HAS EITHER CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME FOR INITIATING PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) OF THE ACT. SUCH RECORDING OF SATISFACTION IN THE CASE OF ASSESSEE I S MISSING AND !. / ITA NO:-1563/DEL/2017 3 CONSEQUENTLY, THE ACTION OF THE ASSESSING OFFICER I N INITIATING PENALTY PROCEEDINGS IS INVALID. IN THIS REGARD, WE FIND SU PPORT FROM THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SH RI SAMSON PERINCHERY IN INCOME TAX APPEAL NO.1154 OF 2014 WIT H OTHER INCOME TAX APPEALS NOS.953 OF 2014, 1097 OF 2014 AND 1226 OF 2 014, JUDGMENT DATED 05.01.2017, WHEREIN IT WAS HELD THAT WHERE IN ITIATION OF PENALTY IS ON ONE LIMB AND THE LEVY OF PENALTY IS ON OTHER LIM B, THEN IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY. 5. WHERE THE AO HAS FAILED TO RECORD ANY SATISFACTI ON DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR INITIATING THE PENALTY PROCEEDINGS AGAINST THE ASSESSEE BY WAY OF SHOW CAUSING AS TO W HICH LIMB OF SECTION 271(1)(C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE, THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT SUF FERS FROM INFIRMITY. HENCE THE SAME IS CANCELLED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DAY OF FEBRUARY, 2020. SD/- SD/- (DR. B.R.R. KUMAR) (SUSHMA CHOWLA) %& ' /ACCOUNTANT MEMBER /VICE PRESIDENT / *! DATED : 21 ST FEBRUARY, 2020 . SH !. / ITA NO:-1563/DEL/2017 4 %6 0 .)378 9%83/ COPY OF THE ORDER IS FORWARDED TO : 1. ,- / THE APPELLANT 2. ./,- / THE RESPONDENT 3. ;3 ( ) / THE CIT(A) 4. > ;3 / THE PR. CIT 5. 6. 8?@ .)3)* , , / DR, ITAT, DELHI @'+ B2 / GUARD FILE. %6* / BY ORDER , /83 .)3 // TRUE COPY // C D'E , , ASSISTANT REGISTRAR, ITAT, DELHI