Smt. Kamini Jain, New Delhi V. ACIT, New Delhi

ITA 2421/DEL/2013

• Counselvise Citation: 242120114 RSA 2013
• Duration Of Justice: 2 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 27

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 2 421 /DEL/2013 AY: 200 7 - 08 SMT. KAMINI JAIN VS. ACIT, CIRCLE 20(1) A 92, GUJRAWALAN TOWN NEW DELHI PART I NEW DELHI 110 009 PAN: ADKPJ 7858 A (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SOMIL AGGARWAL, ADV. & MS. POONAM AHUJA, ADV. RESPONDENT BY : SH.RISHPAL BEDI, SR.D.R. ORDER PER J.SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 30.01.2013 OF LD.CIT(A) - XXII , NEW DELHI FOR ASSESSMENT YEAR 200 7 - 08 . 2. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FACTS AND GROUNDS OF APPEAL RAISED IN THIS CASE ARE IDENTICAL TO THE FACTS AND GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE IN THE CASE OF ASSESSEE S HUSBAND SHRI ASHWANI JAIN IN ITA 2422/DEL/13 FOR THE ASSESSMENT YEAR 2007 - 08 AND THAT THE DELHI A BENCH OF THE TRIBUNAL IN ITS ORDER DT. 30.09.2015 HAS RESOLVED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE LD.SR.D.R. AGREED THAT THE PENALTY WAS LEVIED FOR FURNISHING INACCURATE PARTI CULARS OF INCOME ON UNACCOUNTED INVESTMENTS IN CONNECTION OF THE PROPERTY, WHICH WAS SURRENDERED DURING THE COURSE OF SURVEY EQUALLY IN THE HANDS OF THE HUSBAND OF THE ASSESSEE SHI ASHWANI JAIN AT RS.22,51,000/ - AND IN THE 2 HANDS OF THE ASSESSEE SMT.KAMINI JAIN OF AN EQUAL AMOUNT OF RS.22,51,000/ - . 3. AFTER HEARING RIVAL SUBMISSIONS, WE RESPECTFULLY FOLLOW THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHRI ASHWANI JAIN IN ITA NO.2422/DEL/2013 FOR THE ASSESSMENT YEAR 2007 - 08 VIDE ORDER DT. 30.9.2015, WHERE AT PARAS 5 AND 6 IT IS HELD AS FOLLOWS. 5. WE HEARD THE RI V AL SUBMISSIONS OF THE PARTIES AND PERU SE D THE MATERIAL ON RECORD. IN T HE INSTANT CASE , THE ASSESSING OFFICER LE V IED A P E NALT Y OF R S. 6, 23 , 04 6 / - V ID E ORD E R O F PENALT Y DATED 30 T H JUNE , 2010 . ON P E RUSAL OF THE PENALT Y ORD E R , IT IS CLEAR THAT THE PE N A L TY WAS L EVIED FOR FURNISHING INACCURATE PARTICULARS O F INCOME A N D THERE B Y CO NC EA L E D T H E PARTICULARS O F INCOME WHICH M EANS THAT THIS FI ND ING , IN OUR CON S IDER E D OPI NI ON , IS CONFUSING AND IS NOT C L EAR WHETHER THE ASSESSING OFFICER H OLD ING T H E ASSESSEE GUILTY OF FURNISHING T H E I NACCURATE PARTICULARS OF INCOME OR CONCEALING THE PARTICULAR S OF INCOME . T HI S GOES TO P R OVE THAT THE ASSESSING O FFICER HAD NOT A RRI V ED AT THE S ATIS FACTION AS TO THE GUILT Y STAT E OF MIND OF THE A S SE S SEE . FURTH E R , W E FIND THAT T H E STATEMENT OF SU RR ENDER I S THE SOLE BASIS FOR MAKIN G TH E A DDITION OF R S . 22 , 5 1 , 000 / - , WHI L E SURRE N DER I NG T H IS AMOUNT, T H E ASSESSEE CLE A RL Y STATED TH A T THE S U RRENDER IS MA D E WI T H T H E IN TENT I ON OF BUYING PEACE A ND A V OIDING UNNECESSARY LITIGATION AND THE AMOUNT SURRENDERED CANNOT BE C O - RELATED WITH INCRIMINATING MATERIALS FOUND AS A RESULT OF SURVEY OPERATIONS. THOUGH THE ASSESSING OFFICER AND THE CIT(A) RECORDED THE FINDING THAT T HE ASSESSEE PROMISED TO PRODUCE THE VOUCHERS, WHICH WERE NOT ACCOUNTED IN THE BOOKS OF ACCOUNT , FAILED TO DO SO. IT IS A TRITE LAW THAT THE ONUS ALWAYS LIES ON THE PERSON WHO ALLEGES IN THIS CASE THAT IT IS THE DEPARTMENT WHO MADE AN ALLEGATION THAT SOME V OUCHERS FOUND WHICH WERE NOT ACCOUNTED IN THE BOOKS OF ACCOUNT . THEREFORE, IT IS THE DUTY OF THE REVENUE TO PROVE THAT WHICH VOUCHERS WERE NOT ACCOUNTED IN THE BOOKS OF ACCOUNT . THE ASSESSING OFFICER NEVER BROUGHT ANY SUCH VOUCHERS ON THE RECORD EXCEPT MAK ING IPSE DIXIT STATEMENT THAT SOME VOUCHERS ARE FOUND THAT APART, THE HO N BLE MADRAS HIGH COURT IN 3 THE CASE OF CIT VS . S. KHADER KHAN SONS , 300 ITR 157 (MAD.) AND THE HON'BLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS VS. CIT, (2003) 263 ITR 10 1 (KER . ) HAD CLEARLY HELD THAT NO ADDITION CAN BE MADE BASED ON THE MERE STATEMENT . THE DECISION OF THE HO N 'BLE MADRAS HIGH COURT WAS APPROVED BY HON BLE SUPREME COURT IN THE CASE OF CIT VS. KHADER KHAND SON, (2013) 352 ITR 480 (SC) AFTER GRANTING THE LEA VE. THAT APART, THE CBDT WHICH IS THE APEX BODY IN ADMINISTERING THE PROVISIONS OF INCOME TAX ACT HAD ISSUED CIRCLE DT . 10 TH MARCH, 2003 TO ITS OFFICERS THAT NO ADDITION CAN BE MADE ON MERE STATEMENT OF ASSESSEE WITHOUT BRINGING ANY INDEPENDENT INCRIMINATING MATERIAL ON RECORD. THEREFORE, IN THE LIGHT OF THE ABOVE DECISION, THE VERY ADDITION MADE BY THE ASSESSING OFFICER IS NOT FREE FROM DOUBT . THE MERE DISALLOWANCE CANNOT BE A SOUND B AS I S FOR I MPOSITION OF PENALT Y. IN THIS REGARD , WE PLACE RELIANCE ON THE DECISION OF COORDINATE BENCH OF ITAT , BOMBA Y IN T H E CASE OF BOSTON CONSULTING GRO UP (I ND I) P VT . LTD . , (2011) 12 TA X MANN.COM 278 / 47; SOT 25 (M U M.) URO . F U R TH ER, WE FI N D FROM THE PEN A LT Y ORDER TH A T THE ASSESSING OFFICER HA D NOT GIVE N A FI ND ING AS TO HOW AND IN WHAT MANNER THE ASSESSEE HAD F U RNISHED T H E I N A CCUR A T E PARTIC UL ARS OF INCOME RESULTING IN A DDI TION EXCEPT MAKING A B A L D C H A RG E AGAINST T H E ASSESSEE THAT IT HAD FURNISHED I N ACC U RATE PARTICULARS O F INCO M E AN D CO N CEALED T H E PARTICULARS OF INCOME. IN THE ABSENCE OF ANY SUCH FIN D INGS , TH E P E N A L TY ORDER CANNOT BE S USTAINED IN THE EYES OF L AW AND IN SUPPORT OF THI S PROPO S IT ION , WE RELY ON THE DECISION OF HON ' BL E SUPREME COURT IN THE CAS E O F DIL I P N. S HROFF VS . JCIT , (200 7 ) 291 ITR 519 , WHEREIN THE HON' B LE S U P R E M E C OU R T HEL D AS FOLLOWS: '8 3 . IT IS OF S OM E SIGNIFICANCE T H AT IN THE S TANDARD PR O FORM A U SE D B Y TH E ASSESS IN G OFFICER IN I SS UING A NOTICE DE S PITE TH E FACT TH A T TH E S AM E PO S TULAT ES THAT INAPPROPRIAT E W ORDS AND PARAGRAPHS WE R E TO B E D E L E T E D , BUT THE S AME HAD NOT BE E N DON E . THUS, THE ASSES S ING OFFIC E R H I M SE LF W A S NOT S UR E A S TO W H E TH E R H E HAD PRO C EEDED ON TH E BASIS THAT TH E ASS ESSEE HAD C ONC E AL E D H IS IN C OM E OR H E HAD FURNI S HED INA CC URAT E P A R T I C ULAR S. E VE N B EF OR E U S , T H E L E ARNED ADDITIONAL SOLI C ITOR G E N E RAL W HIL E PL ACI N G TH E OR D ER OF ASS ESS MENT LAID EMPHA S I S THAT HE HAD D E ALT W ITH BOTH TH E SI TUATION S . 84 . T HE IMPUGNED ORD E R , TH E REFORE , SUFF E R S FROM NON - APPLI CA T IO N OF MIND . IT WAS A L SO BOUND TO COMPL Y W ITH T HE PRIN C IPL E S OF NATURAL JU ST I CE . 4 [S EE MALABAR INDU S T R IAL C O . LTD . V . COMMI SS ION E R OF I N CO M E TA X , K E RA LA STAT E , (2000) 2 SCC 7 18J ' 6. IN T H E LIGHT OF THE A B OVE L EGA L P OSITION, WE HAVE NO HE S ITATION TO QUASH T H E PE N A L TY L EVIED UND E R SECTIO N 2 7 1 ( 1 )( C) OF T H E ACT . HENCE , TH E A PPEAL FILED B Y T H E ASSESSEE IS A LL OWE D I N FUL L . 4. IN THE RESULT THE PENALTY IN QUESTION AS CONFIRMED BY THE LD.CIT(A) IS HEREBY DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT ASSESSEE S APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 4 T H DECEMBER,2015. S D / - S D / - (KULDIP SINGH) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 0 4 T H DECEMBER, 2015 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR