ITO, New Delhi V. M/s. Mittal Timber Products Pvt. Ltd., New Delhi

ITA 2076/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2935 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJANA
• Keywords: Additional evidence; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI P. K. BANSAL, VICE PRESIDENT AND SMT BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 2076/DEL/2014 : A SSTT. YEAR : 2007-08 ITO WARD-6(4) NEW DELHI VS. MITTAL TIMBER PRODUCTS PVT. LTD. A-117, 2 ND FLOOR, MEERA BAGH NEW DELHI PAN : AACCM2537P [APPELLANT] [RESPONDENT] ASSESSEE BY : SH. NAVIN GUPTA, ADV. REVENUE BY : SH. P.DAM KANUNJANA, SR. DR DATE OF HEARING: 1 4 12 2017 DATE OF PRONOUNCEMENT: 1 4 12 2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 31.01.2014 BY TAKING THE FOLLOWING AFF ECTIVE GROUND OF APPEAL :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE & LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S 27 1E OF RS. 3,17,06,042/- ENTIRELY ON THE SUBMISSION OF ASSESSE E AND COMPLETELY IGNORING THE REASONS GIVEN BY THE ADDL. CIT WHILE IMPOSING PENALTY ? ITA NO.2076/DEL./2014 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & LAW, THE LD. CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDEN CES IN THE FORM OF BANK STATEMENT AND COPY OF CERTIFICATE FROM AUD ITOR WITHOUT PROVIDING ADEQUATE OPPORTUNITY TO A.O. OF REBUTTAL WHICH IS IN VIOLATION OF RULE 46A OF THE I.T.RULES, 1962 ? 2. WE HAVE HEARD THE RIVAL SUBMISSION AND CAREFULLY CONSIDERED WITH THE SAME. WE NOTED THAT THE ASSESSING OFFICER DURIN G THE COURSE OF THE ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAS REPAID A LOAN AMOUNTING TO RS. 3,17,06,042/- TO M/S. RIYA ENTERPRISES OTHER WISE THAN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE DRAFT IN VIOLATION OF SECTI ON 269T. THE ASSESSING OFFICER, THEREFORE, AFTER GIVEN THE OPPORTUNITY TO THE ASSESSED, THE ASSESSEE SUBMITTED DETAILS OF THE REPAYMENT BY CHEQUE BUT TH E ASSESSING OFFICER TOOK THE VIEW THAT THESE DETAILS ARE NOT SUBSTANTIATED B Y ANY DOCUMENTARY EVIDENCE LIKE BANK STATEMENT. THE ASSESSING OFFICER , THEREFORE, LEVIED THE PENALTY U/S 269T AMOUNTING TO RS. 3,17,06,042/-. 3. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT( A) DELETED THE LEVY OF THE PENALTY BY OBSERVING AS UNDER :- 4.3. THE REASON GIVEN BY THE AO AND THE SUBMISSI ON OF THE APPELLANT ARE CONSIDERED. THE APPELLANT SUBMITTED T HE STATEMENT OF BANK ACCOUNT OF THE APPELLANT IN CORPORATION BAN K, RAJDHANI PARK, DELHI FOR THE RELEVANT PERIOD. THE ACCOUNT NO . IS 40008. THE STATEMENT OF ACCOUNT INDICATES THAT ENTIRE AMOUNT I S PAID THROUGH THE BANKING CHANNEL AND ACCOUNT PAYEE CHEQUE AND TH ERE IS NO VIOLATION OF SECTION 269T OF THE ACT. THE SUBMISSIO N OF THE APPELLANT THAT THERE WERE SUFFICIENT REASON PREVENT ING HIM FROM PRODUCTION OF THE STATEMENT OF BANK ACCOUNT BEFORE THE AO IS FOUND TO BE VALID. DURING THE APPELLATE PROCEEDING, THE APPELLANT ALSO SUBMITTED A LETTER FROM AUDITOR FIRM M/S MOHIT PAREKH & CO. ITA NO.2076/DEL./2014 3 STATING THAT WHILE CERTIFYING ANNEXURE R-V TOWARDS REPAYMENTS OF LOANS OR DEPOSITS FORMING PART OF FORM 3CD, WE H AVE REPORTED THAT THE REPAYMENT WAS MADE OTHERWISE THEN BY AN AC COUNT PAYEE CHEQUE/DD IN THE CASE OF LENDER MENTIONED AT SERIAL NO. 2 (M/S RIYA ENTERPRISES) OF THE SAID ANNEXURE DUE TO TYPOGRAPHICAL/INADVERTENT MISTAKE ON THE PART OF OU R AUDIT TEAM WHICH IS NOT CORRECT AND THE SAME MAY PLEASE BE TRE ATED AS NO THAT IS THE PAYMENTS WERE MADE THROUGH ACCOUNT PAYE E CHEQUE ONLY. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS F OUND THAT THERE IS NO VIOLATION OF PROVISION U/S 269T OF THE ACT AND H ENCE PENALTY LEVIED U/S 271E IS DELETED. 4. THE LD. DR BEFORE US VEHEMENTLY CONTENDED THAT T HE ASSESSING OFFICER HAS VIOLATED THE RULE 46A AND ACCEPTED THE ADDITIONAL EVIDENCE IN THE FORM OF THE BANK STATEMENT. THE ASSESSING OFFICER H AS NOT BEEN GIVEN ANY OPPORTUNITY. THE LD. AR ON THE OTHER HAND CONTENDE D THAT THE ASSESSEE HAS ALREADY GIVEN THE DETAILS OF THE PAYMENT MADE TO M/ S RIYA ENTERPRISES THROUGH CHEQUE WHICH FACT IS APPARENT FROM THE PENA LTY ORDER LAST PARAGRAPH. THE BANK STATEMENT WERE ONLY THE SUPPORTING EVIDENC E THAT THE CHEQUES WERE ENCASHED. THEY WERE NOT THE ADDITIONAL EVIDENCE BUT ONLY THE SUPPORTING EVIDENCE. WE DO AGREED WITH THE LD. AR THAT THERE I S A THIN DIFFERENCE IN THE ADDITIONAL EVIDENCE AND THE SUPPORTING EVIDENCE. TH E ASSESSEE IN THIS CASE GIVEN THE DETAILS OF THE CHEQUE THROUGH WHICH MONEY WAS REPAID TO M/S RIYA ENTERPRISES. THE BANK STATEMENT WERE NOTHING BUT TO SUPPORT THE CONTENTION OF THE ASSESSEE AND ABOUT THE DETAILS OF THE CHEQUE THROUGH WHICH PAYMENT HAS BEEN GIVEN. THE BANK STATEMENT, THEREFORE, IN OUR OPINION IS MERELY A SUPPORTING EVIDENCE IN RESPECT OF THE DETAIL OF THE CHEQUE SUBMITTED BY THE ASSESSEE, IT CANNOT BE REGARDED TO BE THE ADDITIONA L EVIDENCE. WE, THEREFORE, ITA NO.2076/DEL./2014 4 DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORD ER OF THE CIT(A) DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271E AS THERE WILL NOT BE ANY VIOLATION COMMITTED BY THE ASSESSEE U/S 269T. ACCO RDINGLY WE DISMISSED BOTH THE GROUNDS OF APPEAL TAKEN BY REVENUE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STANDS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2 017) SD/- (BEENA A. PILLAI) SD/- (P.K.BANSAL) JUDICIAL MEMBER VICE PRESIDENT DATED: 14 .12.2017 *BINITA* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIST ANT REGISTRAR ITA NO.2076/DEL./2014 5 DATE INITIAL 1. DRAFT DICTATED ON 14/12/2017 2. DRAFT PLACED BEFORE AUTHOR 14/12/2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 14/12/2017 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. ITA NO.2076/DEL./2014 6