Shri Sunil Kumar Bhatia, Delhi V. ITO, New Delhi

ITA 1729/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5271 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 27-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: TARUN ASHWANI
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1729/DEL/2015 ( ASSESSMENT YEAR: 2003-04) SHRI SUNIL KUMAR BHATIA, 5163 KOHLAPUR ROAD, KAMLA NAGAR, DELHI-110007. VS. INCOME TAX OFFICER, WARD 20(1), NEW DELHI. PAN NO: AAF PB 5064J APPELLANT RESPONDENT ASSESSEE BY : SH. TARUN ASHWANI, ADV. REVENUE BY : SH. SURENDER PAL, SR. DR ORDER PER: ANADEE NATH MISSHRA, AM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE OR DER DATED 09.12.2014 OF LD. CIT(A)-12, NEW DELHI, FOR ASSESSMENT YEAR 2003-04. THE GROUNDS OF APPEAL ARE AS UNDER:- I. THE LD. CIT(A) HAS ERRED ON FACTS AS WELL AS IN LAW IN CONFIRMING THE PENALTY FOR CONCEALMENT IN RESPECT OF LOANS INSPITE OF THE FACT THAT THE APPELLANT HAS DISCHARGED HIS ONUS BY FILING CONFIRMATION, THE TRA NSACTIONS ARE THROUGH ITA NO.-1729/DEL/2015. SH. SUNIL KUMAR BHATIA. PAGE 2 OF 5 BANK, THE CREDITOR IS REGULAR ASSESSEE AND THE DEPA RTMENT DID NOT ENFORCE ATTENDANCE OF THE CREDITOR INSPITE OF REQUEST HAVIN G BEEN MADE, NOR DID THEY MAKE ANY ENQUIRIES ABOUT THE ASSESSMENT WARD O F THE CREDITOR OR FROM THE CREDITOR. (1.1) IN THIS ORDER, THE FOLLOWING ABBREVIATIONS HAVE BEE N USED: ASSESSING OFFICER AS AO COMMISSIONER OF INCOME TAX APPEAL AS CIT(A) DEPARTMENTAL REPRESENTATIVE AS DR DATED AS DTD. INCOME TAX ACT AS I.T. ACT INCOME TAX APPELLATE TRIBUNAL AS ITAT LEARNED AS LD. UNDER SECTION AS U/S (2) THE ASSESSEE CLAIMED TO HAVE RECEIVED TWO LOANS , AMOUNTING TO RS. 5,00,000/- AND RS. 4,00,000/- FROM SH. VIJESH KUMAR GUPTA (HUF ) AND SH. SHAYM GOPAL & SONS (HUF) RESPECTIVELY. THE AO DID NOT TREAT THESE LOAN S OF THE TOTAL AMOUNT OF RS. 9,00,000/- AS GENUINE. ASSESSMENT ORDER DATED 24.1 2.2007 U/S 153A OF I.T. ACT WAS PASSED WHEREIN AN ADDITION OF RS. 9,00,000/- WAS MA DE ON ACCOUNT OF UNEXPLAINED LOAN. VIDE ORDER DATED 14.06.2013, LD. CIT(A) CONFI RMED THE AFORESAID ADDITION OF RS. 9,00,000/-. PENALTY U/S 271(1)(C) WAS LEVIED BY THE AO VIDE ORDER DATED 27.09.2013, AMOUNTING TO RS. 2,82,633/-, IN RESPECT OF THE AFO RESAID ADDITION OF RS. 9,00,000/-. THE AFORESAID PENALTY U/S 271(1)(C) OF I.T. ACT WAS CONFIRMED BY THE LD. CIT(A) VIDE ORDER DATED 09.12.2014. THE ASSESSEE FILED APPEAL I N INCOME TAX APPELLATE TRIBUNAL (ITAT) AGAINST THE AFORESAID ORDER DATED 09.12.2014 OF THE LD. CIT(A) IN WHICH THE QUANTUM APPEAL OF RS. 9,00,000/- WAS CONFIRMED: AND ALSO AGAINST THE AFORESAID ORDER ITA NO.-1729/DEL/2015. SH. SUNIL KUMAR BHATIA. PAGE 3 OF 5 DATED 14.06.2013 OF LD. CIT(A) IN WHICH THE PENALTY AMOUNTING TO RS. 2,82,633/- U/S 271(1)(C) OF I.T. ACT WAS CONFIRMED. VIDE ORDER DA TED 14.09.2018 OF ITAT IN ITA NO. 1669/DEL/2018, THE AFORESAID QUANTUM ADDITION OF RS . 9,00,000/- WAS DELETED BY ITAT. NOW, THE PRESENT APPEAL BEFORE US IS IN RESPECT OF THE PENALTY U/S 271(1)(C) OF I.T. ACT. (3) AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FOR ASSESSEE SUBMITTED AT THE OUTSET, THAT THE AFORESAID PENALTY OF RS. 2,82,633/ - LEVIED U/S 271(1)(C) OF I.T. ACT, IN RESPECT OF THE AFORESAID ADDITION OF RS. 9,00,000/- SHOULD BE DELETED BECAUSE THE QUANTUM ADDITION OF RS. 9,00,000/- IN RESPECT OF WH ICH THE PENALTY WAS LEVIED HAS ALREADY BEEN DELETED BY ITAT VIDE ORDER DTD. 14.09. 2018 IN ITA NO. 1669/DEL/2018. REVENUE WAS REPRESENTATIVE BY LD. DEPARTMENTAL REPR ESENTATIVE, RELIED ON THE ORDER OF THE LOWER AUTHORITIES NAMELY AO AND CIT(A). (4) AS THE AFORESAID QUANTUM ADDITION OF RS. 9,00,0 00/- HAS ALREADY BEEN DELETED BY ITAT VIDE AFORESAID ORDER DTD. 14.09.2018 IN ITA NO . 1669/DEL/2018; THE PENALTY OF RS. 2,82,633/- LEVIED BY THE AO IN RESPECT OF THIS ADDI TION HAS NO LEGS TO STAND. THIS PENALTY WAS LEVIED BY THE AO ON THE GROUND THAT THE ASSESSE E HAD SOUGHT TO EVADE TAX ON THE AFORESAID AMOUNT OF RS. 9,00,000/-. ONCE THIS ADDIT ION OF RS. 9,00,000/- HAS BEEN DELETED BY ITAT, IT STANDS EXCLUDED FROM ASSESSED I NCOME; AND, CONSEQUENTLY NO SUCH ASSESSED INCOME REMAINS, ON WHICH THE ALLEGATION TH AT THE ASSESSEE SOUGHT TO EVADE TAX, SURVIVES. AS THE ASSESSED INCOME AS A RESULT OF THE AFORESAID ORDER DTD 14.09.2018 IS NOT TO INCLUDE ANY INCOME ON WHICH THE ASSESSEE CAN BE SAID TO HAVE SOUGHT TO EVADE ITA NO.-1729/DEL/2015. SH. SUNIL KUMAR BHATIA. PAGE 4 OF 5 TAX; THE IMPUGNED ORDER OF LD. CIT(A) CONFIRMING TH E PENALTY U/S 271(1)(C) OF I.T. ACT IS HEREBY SET ASIDE, AND THE PENALTY OF RS. 2,82,63 3/- U/S 271(1)(C) IS HEREBY DELETED. (5) IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23/10/2018 SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23.10.2018 (POOJA) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-1729/DEL/2015. SH. SUNIL KUMAR BHATIA. PAGE 5 OF 5 DATE OF DICTATION 17.10.2018. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 23.10.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 23.10.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER