Renuka Traders Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 1813/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5208 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 30-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U N MARWAH F
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. BHAVNESH SAINI , JM ITA NO. 1813/DEL/2015 : ASSTT. YEAR : 2009 - 10 RENUKA TRADERS PVT. LTD., B - 33, SHIVALIK, MA LVIA NAGAR, NEW DELHI - 110017 VS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 17, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A CCR7713C ASSESSEE BY : SH. U. N. MARWAH , F CA REVENUE BY : SH. ATIQ AHMAD, SR. DR DATE OF HEARING : 10 .08 .201 7 DATE OF PRONOUNCEMENT : 14 . 08 .201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 05.01.2015 OF LD. CIT(A) - XXVI , NEW DELHI. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RE LATES TO THE CONFIRMATION OF PENALTY OF RS.14,21,400/ - LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE AD DITION OF RS.46,00,000/ - ON THE BASIS OF WHICH THIS PENALTY WAS LEVIED HAS BEEN DELETED OF THIS BENCH OF THE ITAT, NEW DELHI IN ITA ITA NO. 1813 /DEL /201 5 RENUKA TRADERSF PVT. LTD. 2 NO. 2464/DEL/2013 FOR THE ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 13.06.2016 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). 4 . IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON THE BASIS OF THE ADDITION OF RS.46,00,000/ - MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT WHICH IS EVIDENT FROM THE ASSESSMENT ORDER DATED 30.12.2011. THE SAID ADDITION WAS CONFIRMED BY THE LD. CIT(A) AND THEREAFTER THE ASSESSEE FILED AN APPEAL IN ITA NO. 2464/DEL/2013 BEFORE THE ITAT DELHI BENCH F , NEW DELHI WHEREIN VIDE ORDER DATED 13.06.2016, T HIS ADDITION WAS DELETED. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED DOES NOT EXIST. THEREFORE, THE PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) I S NOT EXIGIBLE. ITA NO. 1813 /DEL /201 5 RENUKA TRADERSF PVT. LTD. 3 6 . ON A SIMILAR ISSUE THE HON BLE SUPREME COURT IN THE CASE OF K. C. BUILDERS & OTHERS VS ACIT (2004) 265 ITR 562 WHEREIN IT HAS BEEN HELD AS UNDER: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONC EALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 2 7 . IN VIEW OF THE ABOVE, THE IMPUGNED PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 14 /0 8 /2017 ) SD/ - SD/ - ( BHA V NESH SAINI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 14 /08 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR