Vikram Bakshi & Co. (P) Ltd, V. ACIT Circle 12 (1),

ITA 19/DEL/2008

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1647 (ITAT-DELHI)
• Duration Of Justice: 11 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2017
• Assessment Year: 1999-2000
• Appeal Filed On: 03-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Section: 271(1)(c); 274; 73

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEM BER ITA NO. 2699/DEL/2007 [A.Y 1998-1999] ITA NO. 2934/DEL/2009 [A.Y 2000-2001] ITA NO. 19/DEL/2008 [A.Y 1999-2000] M/S VIKRAM BAKSHI & COMPANY VS. THE A. C.I.T TOP FLOOR, MOHAN DEV CIRCLE 12(1) 545, AMEER ROAD NEW DELHI BADHWALI GALI, MEERUT PAN: ABEPW 2480 P (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT JA IN, ADV SHRI DEEPESH JAIN, CA SHRI VIBHU GUPTA, CA DEPARTMENT BY : SHRI S.N. MEENA, SR. DR DATE OF HEARING : 09.12.2019 DATE OF PRONOUNCEMENT : 10.12.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THE ABOVE THREE SEPARATE APPEALS BY THE ASSESSEE AR E PREFERRED AGAINST SEPARATE ORDERS OF THE COMMISSIONER OF INCO ME TAX [APPEALS] 2 DELHI PERTAINING TO ASSESSMENT YEARS 1998-99, 1999- 2000 AND 2000-01. SINCE ALL THESE APPEALS WERE HEARD TOGETHER AND INV OLVE COMMON GRIEVANCE, THESE ARE BEING DISPOSED OF BY THIS COMM ON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE COMMON GRIEVANCE RELATES TO THE LEVY OF PENA LTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT']. IN ASSESSMENT YEAR 1998-99 RETURNED INCOME OF RS. 12,04,065/- WAS ASSESSED AT RS. 24,05,527/-, IN ASSESSMENT YEAR 1999-2000 RETURNED INCOME OF RS. 57,79,765/- WAS ASSESSED AT RS. 90,43,038/- AND IN ASSESSMENT YEAR 2000-01 RETURNED INCOME OF R S. 41,57,521/- WAS ASSESSED AT RS. 1,07,68,310/-. 3. IN ALL THE ASSESSMENT YEARS, THE ADDITIONS HAVE BEEN MADE ON ACCOUNT OF DISALLOWANCE OF INTEREST ON BORROWED CAP ITAL AND WHILE MAKING DISALLOWANCES, THE ASSESSING OFFICER RECORDE D HIS SATISFACTION AS THE ASSESSEE HAS CONCEALED/FURNISHED INACCURATE PA RTICULARS OF ITS INCOME. FOR THAT, PENALTY PROCEEDINGS U/S 271(1)(C ) OF THE ACT HAS BEEN INITIATED SEPARATELY. 3 4. WHILE ISSUING NOTICE U/S 274 R.W.S 271 OF THE AC T, AGAIN THE ASSESSING OFFICER DID NOT SPECIFY WHETHER THE PENAL TY HAS BEEN LEVIED FOR CONCEALMENT OF INCOME OR FOR FILING INACCURATE PARTICULARS OF INCOME. WE ARE OF THE CONSIDERED VIEW THAT IN SUCH A CASE, WHERE NEITHER THE ASSESSMENT ORDER IS CLEAR AS TO UNDER W HICH LIMB PENALTY IS LEVIED, I.E. FOR CONCEALMENT OF INCOME OR FOR FURNI SHING OF INACCURATE PARTICULARS OF INCOME NOR THE NOTICE ISSUED U/S 274 OF THE ACT SPECIFIES THE SAME, PENALTY LEVIED IN PURSUANCE OF SUCH CONDU CT OF THE ASSESSING OFFICER CANNOT BE UPHELD. FOR THIS PROPOSITION, WE DRAW SUPPORT FROM THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COU RT OF DELHI IN THE CASE OF SAHARA INDIA LIFE INSURANCE COMPANY 475/201 5 & OTHERS AND CONNECTED MATTERS. 5. RELEVANT FINDINGS OF THE HON'BLE HIGH COURT READ AS UNDER: 21. THE RESPONDENT HAD CHALLENGED THE UPHOLDING OF THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT , WHICH WAS ACCEPTED BY THE ITAT. IT FOLLOWED THE DECISION OF THE KARNATAKA HIGH COURT IN CIT V. MANJUNATHA COTTON & GINNING FACTORY 359ITR 565 (KAR) AND OBSERVED THAT THE NOTICE ISSUED BY THE AO WOULD BE BAD IN LAW IF IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1) (C) THE PENALTY PROCEE DINGS HAD BEEN INITIATED UNDER I.E. WHETHER FOR CONCEALMENT O F 4 PARTICULARS OF INCOME OR FOR FURNISHING OF INACCURA TE PARTICULARS OF INCOME. THE KARNATAKA HIGH COURT HAD FOLLOWED THE ABOVE JUDGMENT IN THE SUBSEQUENT ORDER IN COMMISSIONER OF INCOME TAX V. SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 241 (KAR), THE APPEAL AGAINST WHICH WAS DISMISSED BY THE SUPREME COURT OF INDIA IN SLP NO.L 1485 OF 2016 BY ORDER DATED 5 LH AUGUST, 2016. ON THIS ISSUE AGAIN THIS COURT IS UNABLE TO FIND A NY ERROR HAVING BEEN COMMITTED BY THE ITAT. NO SUBSTANTIAL Q UESTION OF LAW ARISES. 6. RESPECTFULLY FOLLOWING THE FINDINGS OF THE HON'B LE JURISDICTIONAL HIGH COURT [SUPRA] WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY SO LEVIED U/S 271(1)(C) OF THE ACT. 7. BEFORE PARTING, THE LD. DR THROUGH ITS WRITTEN S UBMISSIONS HAS RELIED UPON VARIOUS JUDICIAL DECISIONS OF VARIOUS H IGH COURTS, BUT NONE OF THE DECISIONS IS DIRECTLY ON THE POINT OF ISSUE OF SUCH NOTICES WHERE IT IS NOT CLEAR UNDER WHICH DEFAULT THE PENALTY IS BEING LEVIED. THEREFORE, THE DECISIONS RELIED UPON BY THE LD. DR ARE OF NO CONSEQUENCE. 5 8. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE IN ITA NOS. 2699/DEL/2007, 2934/DEL/2009 AND 19/DEL/2008 ARE AL LOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 10.12 .2019. SD/- SD/- [ KULDIP SINGH ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 TH DECEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 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 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE 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 RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER