SUKHDEV SINGH, GHAZIABAD V. ITO, WARD- 2(3), GHAZIABAD

ITA 2422/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5386 (ITAT-DELHI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Keywords: Unexplained investment; Opportunity of being heard; Set aside
• Section: 271(1)(c); 274

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2422/DEL/2019 [ASSESSMENT YEAR: 2009-10] SUKHDEV SINGH, VS. ITO, WARD 2(3), C-66, SURYA NAGAR, GHAZIABAD GHAZIABAD (PAN: ABBPS0078E) [APPELLANT] [RESPONDENT] ASSESSEE BY: SHRI DIVYANSH JAIN, ADVOCATE REVENUE BY: MS. PARUL SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS], GHAZIABAD DATED 31.12.2018 PERTAINING TO ASSESSMENT YEAR 2009-10 O N THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLATE ORDER PASSED BY THE LD. CIT(A) IS BAD BOTH IN THE EYES OF LAW AND ON FACTS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING LEVY OF PENALTY OF RS. 14,14,000/- U/S. 271(1)(C) OF THE ACT ON ADDITION MADE BY AO OF RS. 43,25,300/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROTY WHICH HAS BEEN MODIFIED BY CIT(A) NOIDA TO RS. 1,90,18,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON WHICH PENALTY U/S. 271(1)(C) HAS ALSO BEEN IMPOSED. 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING PENALTY OF RS. 14,14,000/- U/S. 271(1)(C) OF THE ACT BEING THE VERY BASIS OF IMPOSING PENALTY ON ADDITION OF RS. 43,25,300/- HELD TO BE WRONG BY CIT(A), NOIDA. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE ORDER PASSED U/S. 147/144 OF THE ACT IN WHICH PENALTY PROCEEDINGS INITIATED ITSELF BEING BAD IN LAW AND A NULLITY THEREBY CONFIRMING THE PENALTY U/S. 271(1) BY THE LD. CIT(A), IS BAD IN LAW. 5. WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL NO. 1 TO 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) AO ERRED IN LAW IN ISSUING SHOW CAUSE NOTICE U/S. 274 R.W.S. 271 OF THE ACT WITHOUT SPECIFYING UNDER WHICH LIMB OF SECTION 271(1)(C) PENALTY PROCEEDINGS HAS BEEN INITIATED I.E. EITHER FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME, HENCE, THE SAID NOTICE IS INVALID AND PENALTY ORDER SO PASSED IS WITHOUT JURISDICTION AND IS BAD IN LAW, AND IS LIABLE TO BE QUASHED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT P ROVIDING 3 SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE REQUESTE D THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE LD. CIT(A) TO DE CIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. ON THE CONTRARY, LD. DR RELIED UPON THE IMPUGNE D ORDER. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I AM OF THE VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HERD TO THE ASSESSEE. 4.1 KEEPING IN VIEW OF THE NON-COOPERATION OF THE A SSESSEE, I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEA R BEFORE THE LD. CIT(A) ON 27.04.2020 AT 10.00 AM FOR HEARING. THERE IS NO NEED TO ISSUE THE NOTICE BY THE LD. CIT(A) TO THE ASSESS EE, SINCE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:19-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 4