M/s. Bansi Lal and Sons, New Delhi V. ACIT, New Delhi

ITA 2/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0481 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THUNGALENG
• Section: 271(1)(c); 143(3); 274

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NO. 2/DEL/2015 [A.Y 2009-10] SHRI BANSI LAL & SONS VS. THE A.C.I.T B- 8/6, ROHINI CIRCLE 38(1) NEW DELHI NEW DELHI PAN: AAEFB 4098 H (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI V. RAJA K UMAR AR DEPARTMENT BY : SHRI THUNGALENG, SR. DR DATE OF HEARING : 09.09.2019 DATE OF PRONOUNCEMENT : 13.09.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS], XXVIII, NEW D ELHI DATED 28.10.2014 PERTAINING TO ASSESSMENT YEAR 2009-10. 2 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT HOLDING THAT THE ASSESSEE IS GUILTY OF CONCEALING PARTICULARS OF INC OME AND ALSO FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT AS SESSMENT WAS COMPLETED ON 27.12.2011 BY FRAMING ORDER U/S 143(3) R.W.S 145 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'T HE ACT' FOR SHORT]. RETURNED INCOME OF RS. 28 LAKHS WAS ASSESSED AT RS. 1.05 CRORES. SIMULTANEOUSLY, PENALTY PROCEEDINGS U/S 271 OF THE ACT WERE INITIATED ALLEGING THAT THE ASSESSEE HAS CONCEALED PARTICULAR S OF INCOME AND HAS ALSO FURNISHED INACCURATE PARTICULARS OF INCOME. 4. NOTICE U/S 274 R.W.S 271 OF THE ACT DATED 27.12. 2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. IN THE NOTICE ALSO, THE ALLEGATION WAS THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCO ME AND ALSO FURNISHED INACCURATE PARTICULARS OF INCOME. ASSESS MENT ORDER AND PENALTY NOTICE CLEARLY SHOW THAT THE ASSESSING OFFI CER HAS NOT MADE HIS INTENTION CLEAR WHETHER THE PENALTY IS LEVIED FOR C ONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME. 3 5. THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE ORDER OF THE HON'BLE HI GH COURT OF DELHI IN A BUNCH OF APPEALS IN ITA NO. 475, 426, 427 AND 429 OF 2019 VIDE ORDER DATED 2.8.2019. THE RELEVANT FINDINGS OF THE HON'B LE 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 359 ITR 565 (KAR) AND OBSERVED THAT THE NOT ICE 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 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 COMMI SSIONER OF INCOME TAX V. SSA S EMERALD MEADOWS (2016) 73 TAXMAN.COM 241 (KAR). THE APPEAL AGAINST WHICH WAS DISMISSED BY THE SUPREME COURT OF INDIA IN STP NO.11485 OF 20 16 BY ORDER DATED 5 TH AUGUST, 2016. 22. ON THIS ISSUE AGAIN THIS COURT IS UNABLE TO FIN D ANY ERROR HAVING BEEN COMMITTED BY THE ITAT. NO SUBSTANTIAL Q UESTION OF LAW ARISES. 4 6. RESPECTFULLY FOLLOWING THE FINDINGS OF THE HON'B LE HIGH COURT [SUPRA] IN THE LIGHT OF FACTS RELATING TO LEVY OF P ENALTY, AS MENTIONED ELSEWHERE, WE DIRECT THE ASSESSING OFFICER TO DELET E THE PENALTY SO LEVIED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 2/DEL/2015 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.09. 2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 TH SEPTEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 5 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 REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER