M/s. Etisha Finance & Investment Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 1585/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6907 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB SR DR
• Section: 271(1)(c)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI ! ! ! ! $ $$ $ $ $$ $ $ $$ $ $ $$ $ %&% %&% %&% %&% ' ' ' ' BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & DR. B.R.R.KUMAR, ACCOUNTANT MEMBER ! ! ! !$ $$ $ / ITA NO:- 1585/DEL/2017 (( (( (( (( / ASSESSMENT YEAR: 2009-10 ETISHA FINANCE & INVESTMENT PVT. LTD., 4380/4-B, ANSARI RAOD, KAUSHALAYA BUILDING, DARYAGANJ, NEW DELHI-110002. PAN-AAACE1803C .......... )* /APPELLANT VS ACIT, CENTRAL CIRCLE-11, NEW DELHI-110055. . +,)* / RESPONDENT )*-.% / APPELLANT BY : NONE +,)*-.% / RESPONDENT BY : MS. ASHIMA NEB, SR.DR -/0& / DATE OF HEARING : 07.10.2019 12-/0& / DATE OF PRONOUNCEMENT: 16.10.2019 % % % % / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF C IT(A)-23, NEW DELHI, DATED 14.02.2017 RELATING TO ASSESSMENT YEAR 2009-10 AGAINST PENALTY LEVIED U/S SECTION 271(1)(C) OF THE INCOME -TAX ACT, 1961 (IN SHORT THE ACT). NONE WAS PRESENT ON BEHALF OF THE ASSE SSEE. ITA NO:1585/DEL/2017 ASSESSMENT YEAR: 2009-10 PAGE | 2 2. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST THE LEVY OF PENALTY FOR CONCEALMENT U/S 271(1)(C) OF THE ACT. 3. BRIEFLY THE FACTS AND CIRCUMSTANCES OF THE CASE ARE THAT THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING NIL I NCOME. THEREAFTER, ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE A SSESSEE AND ADDITION WAS MADE IN RESPECT OF THE ALLEGED ADVANCE MADE OF RS.60 LACS, WHICH WAS ADDED IN THE HANDS OF THE ASSESSEE AS UNACCOUNT ED INCOME. THE ASSESSING OFFICER MADE THE ADDITION IN THE HANDS OF THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS OBSERVING AS UNDER:- PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PART ICULARS OF INCOME AND CONCEALING THE PARTICULARS OF INCOME ARE INITIA TED UNDER SECTION 271(1)(C) OF THE ACT SEPARATELY. 4. THEREAFTER, PENALTY WAS LEVIED AT RS.18,54,000/- U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF IN COME. THE SAID PENALTY WAS CONFIRMED BY THE CIT(A), AGAINST WHICH THE ASSE SSEE IS IN APPEAL. 5. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT AP PEAL IS WHETHER WHERE THE ASSESSING OFFICER HAS FAILED TO RECORD TH E SATISFACTION IN THE ASSESSMENT ORDER AS TO WHICH LIMB OF SECTION 271(1) (C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE, IS THE LEVY OF PENA LTY TO BE UPHELD IN THE CASE OF THE ASSESSEE. 6. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AR E ATTRACTED WHERE THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR FUR NISHED INACCURATE ITA NO:1585/DEL/2017 ASSESSMENT YEAR: 2009-10 PAGE | 3 PARTICULARS OF INCOME. FOR DEFAULT OF EITHER OF TH E LIMBS OF THE SAID SECTION, THE ASSESSEE CAN BE HELD LIABLE FOR LEVY O F PENALTY OF CONCEALMENT. HOWEVER, THE ASSESSING OFFICER WHILE INITIATING PEN ALTY PROCEEDINGS HAS TO COME TO A FINDING IN THIS REGARD. IN THE PRESENT C ASE, WE FIND THAT THE ASSESSING OFFICER HAS FAILED TO RECORD THE SATISFAC TION AS TO WHICH LIMB OF THE SAID SECTION HAS NOT BEEN FULFILLED BY THE ASSE SSEE. IN THE ABSENCE OF THE SAME I.E. WHERE THE ASSESSEE HAS NOT BEEN GIVEN ANY SHOW CAUSE NOTICE AS TO WHICH LIMB OF SECTION 271(1)(C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE, THE LEVY OF THE PENALTY IN THIS CIRCUMSTANCES IS NOT JUSTIFIED. IN THIS REGARD, WE FIND SUPPORT FRO M THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM) . APPLYING THE SAID RATIO, WE DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DAY OF OCTOBER, 2019. SD/- SD/- (B.R.R.KUMAR) (SUSHMA CH OWLA) %& %& %& %& /ACCOUNTANT MEMBER /JUDICIAL MEMBER / ! DATED : 16 TH OCTOBER, 2019 . * AMIT KUMAR * ITA NO:1585/DEL/2017 ASSESSMENT YEAR: 2009-10 PAGE | 4 %-+/45%4/6 COPY OF THE ORDER IS FORWARDED TO : 1. )* / THE APPELLANT; 2. +,)* / THE RESPONDENT; 3. 7 8 9 / THE CIT(A) 4. 4:;+/ / DR, ITAT, DELHI 5. ;(< 6 GUARD FILE. % % % % / BY ORDER , ,4/+/ // TRUE COPY // >?@ , ASSISTANT REGISTRAR, ITAT, DELHI