Aditya Khanna, New Delhi V. ACIT, New Delhi

ITA 1914/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3114 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADAM SINGH
• Assessee Lawyers: B N GOSWAMY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER I.T.A. NO.1914/DEL/2015 (ASSESSMENT YEARS 2008-09) ADITYA KHANNA VS. ACIT B-35, CENTRAL CIR CLE-5 GREATER KAILASH-I NEW DELHI NEW DELHI PAN :AORPK0703M ASSESSEE BY : SH. B.N.GOSWAMY, ADV. REVENUE BY :SH. PADAM SIN GH, SR. DR DATE OF HEARING: 26.02.2018 DATE OF PRONOUNCEMENT: 28.02.2018 ORDER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, HEREINAFTER REFERRED TO AS THE ASSESSEE BY FILING PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER PASSED BY LD . COMMISSIONER OF INCOME TAX (APPEALS) VIDE WHICH HE HAS CONFIRMED THE PENA LTY OF RS. 8,47,212/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) ON THE GROU NDS INTER ALIA THAT : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN SUSTAINING THE PENAL TY AS IMPOSED U/S.271(L)(C) OF THE INCOME TAX ACT 1961. THE PROVISIONS OF THE SAID SECTION WERE NOT ATTRACTED I N THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA 2. THAT NO REASON WHATSOEVER HAS BEEN ASSIGNED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR COMPLETELY IGNORING THE VARIOUS JUDGEMENTS RELIED O N BY THE APPELLANT IN THE WRITTEN SUBMISSIONS AND DURING THE COURSE OF ARGUMENT AS EXTRACTED IN THE APPELLATE ORDER. 3. THAT THE APPELLANT HAD CLEARLY SHOWN THAT THE APPELLANT IS A NON RESIDENT INDIAN AND HAD CLEARLY SHOWN THAT THE MISTAKE MADE WAS COMPLETELY BONAFIDE AND I N VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND VARI OUS JUDGEMENTS RELIED ON BY THE APPELLANT, NO PENALTY I N LAW WAS LEVIABLE. 4. THAT THE RULING RELIED AND REFERRED TO BY THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) IN THE APPELLA TE ORDER HAS NO APPLICATION IN THE FACTS AND CIRCUMSTA NCES OF THE APPELLANTS CASE AND THE AUTHORITY-BELOW MISINT ERPRETED THE RATIO OF THE SAID JUDGEMENT. 5. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN FACTS AND LAW AND PE NALTY ORDER AS MADE MERITS TO BE VACATED. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE ON THE BASIS OF ASSESSMENT ORDER DATED 28. 3.2013 VIDE WHICH IT IS OBSERVED THAT THE ASSESSEE HAS DECLARED THE SHORT T ERM CAPITAL GAIN OF RS. 74,77,604/- WITHOUT ADJUSTING THE SAME AGAINST THE LONG TERM CAPITAL LOSS AS DECLARED IN EARLIER RETURN OF INCOME FILED ON 24.12 .2010 AND THEREBY PROCEEDED TO CONCLUDE THAT THE ASSESSEE HAD CONCEAL ED THE INCOME/ FURNISHED INACCURATE PARTICULARS OF ITS INCOMES AND THEREBY I MPOSED A PENALTY OF RS. 8,47,212/- @ 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A ) BY WAY OF FILING THE APPEAL WHO HAS CONFIRMED THE PENALTY BY DISMISSING THE APPEAL. FEELING 3 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA AGGRIEVED THE ASSESSEE HAS COME UP BEFORE THE TRIBU NAL BY WAY OF FILING PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORITIES REPRESENTATIVE OF THE PARTIES TO THE APPEAL, PERUSED THE ORDER PASSED BY THE REVENUE AUT HORITIES BELOW AND DOCUMENT BROUGHT ON RECORD. 5. UNDISPUTEDLY ASSESSMENT FRAMED BY THE ASSESSING OFFICER IN THIS CASE HAS BEEN ACCEPTED BY THE ASSESSEE. IT IS ALSO NOT IN DI SPUTE THAT ALONG WITH RETURN OF INCOME FILED BY THE ASSESSED, HE HAS FILED COMPUTAT ION OF INCOME BY DECLARING THE SHORT TERM CAPITAL GAIN OF RS. 74,77,604/- WITH OUT ADJUSTING THE SAME AGAINST THE LONG TERM CAPITAL LOSS AS DECLARED IN THE EARLI ER RETURN OF INCOME. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS RECTIFIED ITS MIST AKE BY CLAIMING THE SAME AS HUMAN ERROR. 6. IN THE BACKDROP OF THE AFORESAID UNDISPUTED FACT S OF THIS CASE THE SHORT QUESTION ARISES FOR DETERMINATION IN THIS CASE IS AS TO WHETHER ASSESSEE HAS CONCEALED HIS INCOME BY FURNISHING INCORRECT PARTIC ULARS OF INCOME IN THE COMPUTATION OF INCOME. 7. THE LD. AR FOR THE ASSESSEE CONTENDED THAT AT NO POINT OF TIME THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME RAT HER THE COMPLETE DETAIL AS TO THE SHORT TERM CAPITAL GAIN HAS BEEN GIVEN IN THE C OMPUTATION OF INCOME BUT DUE TO HUMAN ERROR THE SAME COULD NOT BE ADJUSTED AGAIN ST THE LONG TERM CAPITAL LOSS, WHICH ERROR HE HAS RECTIFIED IN THE RETURN OF INCOM E FILED LATER ON. CONTENTION OF THE RAISED BY LD. AR FOR THE ASSESSEE IS SUSTAINAB LE AS COMPLETE PARTICULARS HAVE BEEN GIVEN BY THE ASSESSEE IN THE COMPUTATION OF IN COME FILED ALONG WITH RETURN OF INCOME AVAILABLE AT PAGE 2 TO 4 OF THE PAPER BOO K. WE ARE OF THE CONSIDERED VIEW THAT WHEN THE COMPLETE DETAIL HAS BEEN GIVEN B Y THE ASSESSEE AND FOUND TO 4 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA BE INCORRECT DURING SCRUTINY IT DOES NOT AMOUNTS TO CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. 8. HONBLE SUPREME COURT IN A CASE CITED AS CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC) WHILE INTERPRETING THE PROVISIONS CONTAINED U/S 271(1)(C) DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE. OPERATIVE PART OF WHICH IS REPRODUCED FOR READY REF ERENCE AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(L)(C) O F THE I.T. ACT, 1961 SUGGESTS THAT IN ORDER TO BE COVERED BY I T, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INC OME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURN ISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING O F THE WORD PARTICULARS USED IN SECTION 271(L)(C) WOULD EMBRACE THE DETAIL OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCU RATE PARTICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PEN ALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISIO N, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUN T TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE T HE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LI ABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLI ED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT 5 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SU PPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORREC T OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(L)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NO T AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNO T AMOUNT TO FURNISHING INACCURATE PARTICULARS. 9. BARE PERUSAL OF THE PENALTY ORDER AND ORDER PASS ED BY THE LD. CIT(A) APPARENTLY GO TO PROVE THAT AO HAS MERELY MADE AN A DDITION ON THE BASIS OF THE FACT THAT FACTUM OF DECLARING THE SHORT TERM CAPITA L GAIN WITHOUT ADJUSTING THE SAME AGAINST THE LONG TERM CAPITAL LOSS AMOUNTS TO CONCEALMENT OF INCOME/FURNISHING OF INACCURATE PARTICULARS OF INCO ME AND NOT AN INADVERTENT MISTAKE ALLEGED BY ASSESSEE BY THE INACCURATE NARRA TION MADE IN THE WADHAS PROFESSIONAL REFERENCE, 2013. TO OUR MIND IT IS M ERELY AN INADVERTENT MISTAKE IN FILING THE RETURN. HAD THERE BEEN ANY SUCH INTENTI ON ON THE PART OF THE ASSESSEE, THE AMOUNT OF SHORT TERM CAPITAL GAIN WOULD NOT HAV E BEEN MENTIONED IN THE COMPUTATION OF INCOME. 10. IN THE JUDGMENT IN CASE OF CIT VS. RELIANCE PET RO PRODUCTS PVT. LTD. (SUPRA), HONBLE SUPREME COURT HELD THAT, MERE MAK ING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSED. MOREOVER, THE PURPOSE OF SCRUTINY PROCEEDINGS INITIATED AGAINST THE ASSESSEE IS TO EXAMINE THE SUSTAINABILITY OF THE CLAIM MADE BY THE ASSESSEE IN ITS RETURN OF INCOME. SO, WHEN 6 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA COMPLETE FACTS AND FIGURES REGARDING INCOME AND DED UCTIONS CLAIMED HAVE BEEN BROUGHT BEFORE AO BY THE ASSESSEE, THE QUESTION OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS DOES NOT ARISE. 11. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT PENALTY OF RS. 8,47,212/- LEVIED BY AO AND CON FIRMED BY THE CIT(A) IS NOT SUSTAINABLE IN THE EYE OF LAW, HENCE, ORDERED TO B E DELETED. 12. RESULTANTLY, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 FEB., 2018 . SD/- SD/- (B.P.JAIN) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 28 TH FEB. 2018 BINITA COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER 7 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA .NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 28.02.2018 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28.02.2018 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER 8 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA 9 I.T.A.NO.1914/DEL/2015 ADITYA KHANNA