SHYAM SUNDER JINDAL, NEW DELHI V. ACIT, CENTRAL CIRCLE- 30, NEW DELHI

ITA 2246/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0389 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Peak credit; Set aside
• Section: 271(1)(c); 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: B NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.2246/DEL/2018 ASSESSMENT YEAR: 2007-08 SH. SHYAM SUNDER JINDAL, 12A, GREEN AVENUE, SECTOR- D, POCKET-3, VASANT KUNJ, NEW DELHI VS. ACIT, CENTRAL CIRCLE -30, NEW DELHI PAN :AAGPJ0184N (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 22/02/2018 PASSED BY THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS)-30, NEW DELHI [IN SHORT THE LD. CIT(A)] IN RELATION TO PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOM E-TAX ACT, 1961 (IN SHORT THE ACT) FOR ASSESSMENT YEAR 2007-08. T HE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) [ CIT (A)] ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT THE IMPUGNED O RDER DATED 22- APPELLANT BY SH. ROHIT JAIN, ADV. MRS. DEEPASHREE RAO, CA RESPONDENT BY MRS. NIDHI SRIVASTAVA, CIT DATE OF HEARING 12.07.2021 DATE OF PRONOUNCEMENT 16.07.2021 2 ITA NO.2246/DEL/2018 02-2018, LEVYING PENALTY UNDER SECTION 271 (1 )(C) OF THE INCOME- TAX ACT, 1961 (THE ACT), IS WITHOUT JURISDICTION, BAD IN LAW AND VOID-AB-INITIO. 1.1. THAT THE CIT (A) ERRED IN NOT APPRECIATING TH AT THE IMPUGNED PENALTY ORDER WAS PASSED WITHOUT RECORDING REQUISIT E SATISFACTION IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT, WHICH IS SINE QUA NON FOR ASSUMPTION OF JURISDICTION. 1.2. THAT THE CIT (A) ERRED IN NOT APPRECIATING TH AT THE IMPUGNED PENALTY ORDER WAS PASSED IN UNDUE HASTE, WITHOUT AF FORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLAN T, CONTRARY TO THE EXPRESS PROVISIONS OF SECTION 275(1 )(A) OF THE ACT. WITHOUT PREJUDICE: 2. THAT THE CIT (A) ERRED IN CONFIRMING PENALTY OF RS. 12,687 LEVIED UNDER SECTION 271 (1 )(C) OF THE ACT IN RESPECT OF ADDITION OF RS.37,675, MADE ON ACCOUNT OF DIFFERENCE IN PEAK BA LANCE IN ALLEGED FOREIGN BANK ACCOUNT MAINTAINED BY THE APPE LLANT. 2.1. THAT THE CIT (A) ERRED IN NOT APPRECIATING THA T PENALTY WAS LEVIED SOLELY ON THE BASIS OF FINDINGS GIVEN IN THE ASSESS MENT PROCEEDINGS (WHEREIN, TOO, NO REASONS HAVE BEEN GIV EN), FAILING TO APPRECIATE THAT PENALTY PROCEEDINGS ARE SEPARATE AN D INDEPENDENT FROM ASSESSMENT PROCEEDINGS. 2.2. THAT THE CIT (A) ERRED IN NOT APPRECIATING TH AT ADDITION IN THE CASE OF THE APPELLANT WAS MADE SOLELY ON THE BASIS OF SO ME UNAUTHENTICATED/ GENERAL/ VAGUE INFORMATION/ PIECE OF PAPER, THE SOURCE OF WHICH IS ALSO UNKNOWN AND THEREBY THE SAM E COULD NOT BE THE BASIS FOR LEVYING PENALTY UNDER SECTION 271( 1 )(C) OF THE ACT 2.3. THAT THE CIT (A) ERRED IN NOT CONSIDERING THE ORDER PASSED BY THE TRIBUNAL IN THE QUANTUM APPEAL PREFERRED BY THE APP ELLANT FOR ASSESSMENT YEAR 2006-07, WHEREIN PRIMARY ADDITION M ADE ON ACCOUNT OF ALLEGED DEPOSIT IN FOREIGN BANK ACCOUNT HAS BEEN DELETED AND SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER. 2.4. THAT THE CIT (A) ERRED IN NOT APPRECIATING TH AT THE ADDITION MADE IN ASSESSMENT YEAR 2007-08, THE YEAR UNDER CONSIDER ATION, WAS MERELY NOMINAL DIFFERENTIAL INCREASE IN THE ALLEGED PEAK BALANCE WHICH WAS ALREADY ADDED IN ASSESSMENT YEAR 2006-07 AND CONSEQUENTLY, THE SAID ADDITION WAS COMPLETELY DEPE NDENT UPON FINDING IN ASSESSMENT YEAR 2006-07, WHICH HAS ALREA DY BEEN DELETED AND SET ASIDE BY THE TRIBUNAL. 2.5. THAT THE CIT (A) ERRED IN NOT CONSIDERING THE ORDER PASSED BY THE CIT (A), DELETING THE PENALTY LEVIED UNDER SECTION 271(1 )(C) OF THE ACT FOR THE ASSESSMENT YEAR 2006-07. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR VARY FROM THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TIME O F HEARING. 2. AT THE OUTSET, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ADDITION IN DISPUTE FOR WHICH THE IMPUGNED PENALTY IS 3 ITA NO.2246/DEL/2018 LEVIED AND SUSTAINED BY THE LEARNED CIT(A), HAS ALR EADY BEEN SET ASIDE BY THE TRIBUNAL AND THE MATTER HAS BEEN RESTO RED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH AND TH EREFORE, THE PENALTY IN DISPUTE DOES NOT SURVIVE. THE LEARNED DR THOUGH RELIED ON THE ORDER OF THE LOWER AUTHORITIES, HOWEV ER, COULD NOT CONTROVERT THE POSITION OF THE ADDITION FOR WHICH P ENALTY WAS LEVIED. 3. WE HAVE HEARD BOTH THE PARTIES, WHO APPEARED THROU GH VIDEO CONFERENCE FACILITY. WE FIND THAT ADDITION OF RESIDUARY BALANCE OF PEAK CREDIT IN FOREIGN BANK ACCOUNT WITH HSBC, GENEVA, WAS MADE BY THE ASSESSING OFFICER AND WHICH WAS SUSTAINED BY THE LEARNED CIT(A). THE ASSESSING OFFI CER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF 12,687/- FOR FURNISHING INACCURATE PARTICULARS OF THE INCOME, IN RELATION TO THE ADDITION SUSTAINED. BUT WE FIND THAT TRIBUNAL IN IT A NO. 5449/DEL/2016 FOR AY : 2007-08 HAS SET ASIDE THE OR DER OF THE LD. CIT(A) AND RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE AFRESH OBSERVING AS UNDER: 3. WE FIND THAT SIMILAR MATTER IN ASSESSEES OWN C ASE FOR THE ASSESSMENT YEAR 2006-07 IN ITA NO. 5448/DEL/2016 ST ANDS ADJUDICATED BY THE CO-ORDINATE BENCH OF ITAT DELHI WHEREIN IT WAS HELD THAT THE ASSESSING OFFICER INFORMED THE ASSES SEE ABOUT THE COPY OF BANK ACCOUNT OBTAINED UNDER DTA. HOWEVER, A CONTRADICTORY OBSERVATION HAS BEEN MADE IN PARA 6 OF THE ASSESSME NT ORDER THAT THE REQUISITE INFORMATION FROM SWISS BANKING AUTHOR ITY HAD NOT BEEN RECEIVED. WE, THEREFORE, CONSIDERING THE TOTALITY O F THE FACTS AS DISCUSSED HEREINABOVE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD AND BY CONFRONTING THE A SSESSEE WITH THE DOCUMENTS WHICH RELATES TO HIM. 4S REGARDS TO THE L EGAL ISSUE RELATING TO THE VALIDITY OF THE ASSESSMENT U/S 153A OF THE ACT, IT IS NOTICED THAT THE ASSESSEE IN PARA 2.20 OF HIS WRITT EN SUBMISSIONS DATED 22.08.2016 STATED THAT THE SEARCH TEAM HAD CO NFRONTED THE ASSESSEE WITH UNAUTHENTIC DOCUMENT. IN THE PRESENT CASE, IT IS NOT 4 ITA NO.2246/DEL/2018 CLEAR AS TO WHETHER ANY AUTHENTIC DOCUMENT WAS CONF RONTED TO THE ASSESSEE OR NOT. THE ASSESSING OFFICER ALSO MENTION ED THAT A REFERENCE WAS MADE ON 27.11.2012 BUT IT IS NOT CLEA R FOR WHICH PURPOSE THE SAID REFERENCE WAS MADE. SO IN THE ABSE NCE OF CLEAR FACTS ON RECORD, THIS ISSUE IS ALSO SET ASIDE TO TH E FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH, IN ACCO RDANCE WITH LAW AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE'. SINCE, THE VERBATIM OF THE ORDER, IN THE PRESENT CASE IS ALSO SAME, AND IN THE ABSENCE OF ANY CHANGE IN THE MATERIAL FACTS, WE HEREBY REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE AFRESH, IN ACCORDANCE WITH LA W AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.1 IN OUR OPINION, ONCE THE ADDITION IN DISPUTE HAS B EEN SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFF ICER TO BE DECIDED AFRESH, THE PENALTY LEVIED IN RESPECT OF TH E ADDITION CANNOT BE SURVIVED AND IT WOULD BE AT THE DISCRETIO N OF THE ASSESSING OFFICER TO RE-INITIATE THE PENALTY PROCEE DINGS AS PER LAW. ACCORDINGLY, PENALTY LEVIED IN THE CASE OF THE ASSE SSEE IS DELETED. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ACCOR DINGLY ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY, 2021. SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 TH JULY, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI