Ms Annie Kishan, Gurgaon V. DCIT, New Delhi

ITA 1981/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3400 (ITAT-DELHI)
• Duration Of Justice: 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 03-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDRA DUBEY
• Section: 80C; 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY : A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT & SHRI K.N. CHARRY, JUDICIAL MEMBER STAY NOS.-243 & 244/DEL/2017 (IN ITA NO. 1979 & 1981/DEL/2017) ( ASSESSMENT YEAR: 2011-12) ANNIE KISHAN M-5/12, DLF CITY-2, GURGAON. AEMPA6943E VS DCIT CIRCLE 47(1) NOW CIRCLE 71(1) NEW DELHI. & ITA NOS. 1979 & 1981/DEL/2017 ( ASSESSMENT YEAR: 2011-12) ANNIE KISHAN M-5/12, DLF CITY-2, GURGAON. AEMPA6943E VS DCIT CIRCLE 47(1) NOW CIRCLE 71(1) NEW DELHI. ASSESSEE BY SH. SALIL KAPOOR, ADV. & ANANYA KAPOOR, ADV. REVENUE BY SH. UMESH CHANDRA DUBEY, SR. DR ORDER PER BENCH ALL THESE MATTERS EMANATE FROM THE ASSESSMENT AND P ENALTY PROCEEDINGS RELATING TO THE AY 2011-12. DATE OF HEARING 21.04.2017 DATE OF PRONOUNCEMENT 21.04.2017 2 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SALARIED EMPLOYEE WORKING AS HEAD CSR WITH PEPSI FOODS PVT. LTD. SHE FILED HER RETURN OF INCOME FOR AY 2011-12 ON 31.07. 2011 DECLARING A TOTAL INCOME OF RS. 53,09,654/- AND A SHORT TERM CAPITAL LOSS OF RS. 3,043/- AND ALSO CLAIMED DEDUCTIONS U/S 80C & 8 0G OF THE ACT AMOUNTING TO RS. 1 LAKH AND RS. 6,000/- RESPECTIVEL Y. AO ADDED BACK AN AMOUNT OF RS. 14,19,432/- AS UNDISCLOSED IN VESTMENT IN MUTUAL FUNDS, FAILED TO GIVE THE BENEFIT THE TAX DE DUCTED AT SOURCE IN RESPECT OF PERQUISITES TO A TUNE OF RS. 3,36,423 /- AND ADDED RS. 1,06,000/- DISALLOWING THE CLAIM OF THE ASSESSEE FO R DEDUCTION U/S 80C AND 80G OF THE ACT. AO ALSO INITIATED PENALTY PROCEEDINGS AND BY WAY OF ORDER DATED 24.09.2014 HE IMPOSED A PENAL TY OF RS. 5,75,313/-. 3. APPEALS PREFERRED AGAINST THE ASSESSMENT AND PEN ALTY ORDERS WERE DISMISSED BY THE LD. CIT (A)-XXI, NEW DELHI BY WAY OF ORDER DATED 11.11.2016. 4. AGGRIEVED BY THE ORDERS OF THE AUTHORITIES BELOW , THE ASSESSEE PREFERRED ITA NO. 1979/DEL/2017 CHALLENGING THE CON FIRMATION OF THE ADDITIONS AND ITA NO. 1981/DEL/2017 CHALLENGING THE 3 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 CONFIRMATION OF THE PENALTY. PENDING DISPOSAL OF T HE APPEALS THE ASSESSEE PREFERRED STAY PETITIONS IN STAY PETITIONS NOS 243 & 244/DEL/2017. 5. AS COULD BE SEEN FROM THE ORDER OF THE LD. COMMI SSIONER OF INCOME TAX CONFIRMING THE QUANTUM ADDITIONS, LD. CI T (A) OBSERVED THAT THE ASSESSEE FAILED TO FURNISH BEFORE THE AO MATERIAL IN SUPPORT OF HER CLAIM AND DURING THE APPELLATE PR OCEEDINGS ALSO SHE FAILED TO SUBSTANTIATE HER CLAIM WITH COGENT EV IDENCE. ON THESE OBSERVATIONS THE LD. CIT (A) UPHELD THE ADDIT IONS MADE BY THE AO AND ALSO CONFIRMED THE PENALTY. DURING THE COURSE OF THESE PROCEEDINGS BEFORE US WHILE WE ARE HEARING THE STAY PETITIONS LD. COUNSEL PRODUCED BY WAY OF PAPER BOOK THE COPY OF T HE MUTUAL FUND STATEMENT, COPY OF FORM 16 ON TWO DIFFERENT DA TES ALONG WITH FORM 12BA, ETC. AND DREW OUR SPECIFIC ATTENTION TO PAGE NOS. 14 TO 16 IN RESPECT OF PORTFOLIO STATEMENT AND TRANSACTIO NS AS CONTAINED IN THE ENTRY DATED 25/06/2010 IN RESPECT OF IDFC EQ UITY FUND DIVIDEND AMOUNTING TO RS. 8,56,892/- SHOWING THAT T HOSE ENTRIES ARE IN RESPECT OF SWITCH OUT AND SWITCH IN. SIMILA RLY AT PAGE NO. 16 SIMILAR ENTRIES WERE THERE BEARING THE DATE OF 04.0 5.2010 IN 4 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 RESPECT OF HDFC INFRASTRUCTURE FUND GROWTH AND HDFC MONTHLY INCOME PLAN AMOUNTING TO RS. 5,62,540/-. BY SHOWIN G THESE ENTRIES LD. COUNSEL EXPLAINED THAT THERE IS NO FRES H INVESTMENT TO A TUNE OF RS. 14,19,432/- BUT IT WAS ONLY THE REINV ESTMENT OF THE SAME FUNDS WHICH WAS INVESTED EARLIER. 6. SO ALSO IN RESPECT OF DENIAL OF TDS AMOUNTING TO RS. 1,04,863/- IN RESPECT OF PERQUISITES TO A TUNE OF R S. 3,36,423/- IS CONCERNED. LD. COUNSEL SUBMITS THAT IT WAS REFLECT ED IN FORM NO. 26AS AND THE FRESH FORMS 16A ISSUED BY THE COMPANY. HE PRODUCED SUCH EVIDENCE VIDE PAGE NOS. 12, 13 & 17 T O 22 OF THE PAPER BOOK. HE SUBMITTED THAT IN RESPECT OF THE CL AIM FOR DEDUCTION U/S 80C & G ALSO SUFFICIENT EVIDENCE IS P RODUCED BUT THE LD. CIT (A) FAILED TO APPRECIATE THE SAME PROPE RTY. 7. IT IS THE ARGUMENT OF THE LD. DR THAT ALL THESE FACTS NEED VERIFICATION AT THE END OF THE AO AND SINCE THE ASS ESSEE FAILED TO SUBMIT ALL THE MATERIAL BEFORE THE AO THERE WAS NO OCCASION FOR THE AO TO EXAMINE ALL THESE DOCUMENTS TO REACH THE JUST TAX LIABILITY OF THE ASSESSEE AS SUCH IN THE ABSENCE OF THE VERIFICA TION OF THIS 5 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 MATERIAL BY THE AO NO CREDENCE COULD BE GIVEN TO TH ESE DOCUMENTS AND NO CONCLUSIONS COULD BE REACHED AS TO THEIR VER ACITY. 8. ON THIS SUBMISSION OF THE LD. DR THAT THE DOCUME NTARY EVIDENCE PRODUCED BY THE ASSESSEE REQUIRES THE VERI FICATION BY THE AO, LD. AR SUBMITS NO OBJECTION. AT THIS STAGE LD. AR AS WELL AS LD. DR SUBMITTED THAT SINCE THE DOCUMENTS NEED VERI FICATION AT THE END OF THE AO TO REACH THE JUST TAX LIABILITY O F THE ASSESSEE NO PURPOSE WOULD BE SERVED BY DISPOSING OF THE STAY PE TITIONS ALONE OR TO KEEP THE APPEALS PENDING AS SUCH APPEALS MAY BE HEARD AND DECIDED AT THIS STAGE ITSELF. SINCE BOTH THE SIDES ARE READY TO PROCEED WITH THE APPEALS, WE PROCEEDED TO HEAR THE APPEALS ON MERITS. 9. A CAREFUL CONSIDERATION OF THE ORDERS OF THE AUT HORITIES BELOW INDICATES THAT THE ASSESSEE FAILED TO SUBSTANTIATE HER CLAIM BEFORE THE AO BY PRODUCING COGENT AND CONVINCING EVIDENCE. SO ALSO EVEN BEFORE THE LD. CIT (A) NO SUCH EXERCISE WAS UNDERTA KEN. OBSERVING THAT THERE IS NO MATERIAL IN SUPPORT OF THE CLAIM O F THE ASSESSEE, THE AUTHORITIES BELOW CONCLUDED THAT THE ASSESSEE I S NOT ENTITLED TO THE BENEFITS CLAIM. HOWEVER, SINCE SUCH MATERIAL I S PRODUCED NOW 6 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 WHICH ACCORDING TO THE COUNSEL ON EITHER SIDE REQUI RES VERIFICATION AT THE END OF THE AO TO REACH A JUST CONCLUSION, WE FIND IT JUST AND PROPER TO SET ASIDE THE MATTER TO THE FILE OF THE A O FOR CONSIDERATION OF THE MATTER AFRESH IN THE LIGHT OF THE DOCUMENTS NOW PRODUCED OR THAT WILL BE PRODUCED BEFORE THE AO. SINCE, WE ARE SETTING ASIDE THE MATTER RELATING TO THE QUANTUM ADDITIONS TO THE FILE OF THE AO, THE PENALTY PROCEEDINGS DO NOT SURVIVE AND THEY SHA LL FOLLOW A FRESH CONSIDERATION OF THE MATTER BY THE AO. NEEDL ESS TO SAY, THE AO WILL CONSIDER THE MATTER AFRESH BY GIVING AN OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AND PRODUCING THE DOCUM ENTS IF ANY. 10. WITH THIS VIEW OF THE MATTER, WE DISMISS BOTH T HE STAY PETITIONS AND ALLOW ITA NOS. 1979 & 1981/DEL/2017 F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.04.2017 SD/- SD/- (G.D. AGRAWAL) (K. NARSIMHA CHARRY) PRESIDENT JUDICIAL MEMBER DATED: 21.04.2017 *KAVITA ARORA 7 STAY NOS. 243 & 244/DEL/2017 & ITA NOS. 1979 & 198 1/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 21.04.2017 DRAFT PLACED BEFORE AUTHOR 21.04.2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 21.04.2017 KEPT FOR PRONOUNCEMENT ON 21.04.2017 FILE SENT TO THE BENCH CLERK 21.04.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.