M/s. Bhayana Interiors & Furnishers Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 1999/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0994 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 05-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY KAPOOR
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 201; 263

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 1999 /DEL/201 7 ASSESSMENT YEAR : 2 007 - 08 BHAYANA INTERIORS & FURNISHERS PVT. LTD., 7, FACTORY R OAD, NEAR SAFDARJUNG HOSPITAL, DELHI. PAN: AA B CB 8161D VS ITO, WARD - 2(4), NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI DEEPAK MALIK, ADVOCATE RE VENUE BY : SHRI SAN JAY KAPOOR, SR. DR DATE OF HEARING : 09 . 1 2 . 201 9 DATE OF PRONOUNCEMENT : 17 . 1 2 . 201 9 ORDER PER R. K. PANDA, AM : TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX PARTE ORDER DATED 27 TH DECEMBER, 201 6 OF THE CIT(A) - 2 , NEW DELHI RELATING TO ASSESSMENT YEAR 2007 - 08. 2. LEV Y OF PENALTY OF RS.21,37,185/ - BY THE AO AND UPHELD BY THE CIT(A) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. ITA NO. 1999 /DEL/201 7 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND FILED ITS RETURN OF INCOME ON 31.10 .2007 DECLARING AN INCOME OF RS.1,78,961/ - . THE AO COMPLETED THE ASSESSMENT U/S 143(3) ON 7 TH DECEMBER, 2009 DETERMINING THE TOTAL INCOME OF RS.1,98,699/ - . SUBSEQUENTLY, THE CASE WAS SET ASIDE BY THE LD.CIT, DELHI U/S 263 OF THE IT ACT. SUBSEQUENT TO SUC H SETTING ASIDE OF THE ORDER BY THE CIT, THE AO COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME AT RS.65,28,297/ - WHEREIN HE MADE VARIOUS DISALLOWANCES. SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C). REJECTING THE VARIOUS EXPLANA TIONS GIVEN BY THE ASSESSEE, THE AO LEVIED PENALTY OF RS.21,37,185/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED ON THE FOLLOWING ADDITIONS: - 1. DISALLOWANCE OF DONATION RS.78,568/ - 2. DISALLOWANCE S.D. U/S 24(B) RS.16,16,125/ - 3. DISALLOWANCE ON A/C OF DIFFEREN CE IN THE SALE PROCEEDS RS.16,52,905/ - 4. DISALLOWANCE OF COMMISSION 5. DISALLOWANCE OF TRAVELLING EXPENSES RS.10,32,000/ - PERTAINING TO A.Y. 2008 - 09 RS.15,00,000/ - 6. DISALLOWANCE OF TRAVELLING EXPENSES RS.4,50,000/ - 4. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) DESPITE A NUMBER OF OPPORTUNITIES GRANTED BY HIM, THE LD.CIT(A) SUSTAINED THE PENALTY SO LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 6 . WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT DESPITE GRANTING A ITA NO. 1999 /DEL/201 7 3 NUMBER OF OPPORTUNITIES BY THE CIT(A), THE ASSESSEE DID NOT APPEAR BEFORE HIM FOR WHICH THE LD.CIT(A) IN THE EX PARTE ORDER PASSED BY HIM, SUSTAINED THE PENALTY SO LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A POSITION TO EXPLAIN HIS CASE BEFORE THE CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUES TO THE FILE OF THE CIT(A) WITH A DIRECTION TO G IVE ONE FINAL OPPORTUNITY TO THE ASSESSEES TO SUBSTANTIATE ITS CASE AND D ECIDE THE ISSUE AS PER FACT AND LAW . THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND EXTEND ITS COOPERAT ION FAILING WHICH THE LD. CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS R AISED BY THE ASSESSEES ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 17 . 12 .201 9 . SD/ - SD/ - ( K . NARASIMHA CHARY ) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 TH DECEMBER, 201 9 DK ITA NO. 1999 /DEL/201 7 4 COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR A SSTT. REGISTRAR, ITAT, NEW DELHI