Radhey Shyam Dixit, Delhi V. ACIT, New Delhi

ITA 2482/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6620 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2482/DEL/2015 ASSESSMENT YEAR: 2008-09 RADHEY SHYAM DIXIT, C/O KAPIL GOEL, ADVOCATE, F-26/124, SECTOR-7, ROHINI, DELHI. (PAN- AAKPD7321H) (APPELLANT) VS. ACIT, CIRCLE 39(1), NEW DELHI (RESPONDENT) A PPELLANT BY SHRI KAPIL GOEL, ADVOCATE RE SPONDENT BY SHRI ATIQ AHMED, SR. DR ORDER PER L.P. SAHU, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-XX, NEW DELHI DATED 12.02.2015 FOR THE ASSES SMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS : A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW LD CIT-A ERRED IN CONFIRMING ON EX-PARTE BASIS THE PEN ALTY U/S 271(1)(C) AMOUNTING TO RS.6,97,784/- WHERE LD A.O. ALSO PROCE EDED TO LEVY PENALTY IN REJECTION OF ASSESSEE B. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW LD CIT-A ERRED IN CONFIRMING ON EX-PARTE BASIS THE PEN ALTY U/S 271(1)(C) AMOUNTING TO RS.6,97,784/- WHICH DO NOT FULFILL ING REDIENTS OF SECTION 271(1)(C) OF THE ACT. DATE OF HEARING 16.07.2018 DATE OF PRONOUNCEMENT 19 .07.2018 ITA NO. 2482/DEL/2015 2 2. THE FACTS, IN NUTSHELL, ARE THAT THE ASSESSING O FFICER VIDE ORDER DATED 31.12.2010 MADE U/S. 143(3) MADE AGGREGATE ADDITION OF RS.22,58,200/- ON ACCOUNT OF UNSECURED LOANS AND SHORT TERM CAPITAL G AINS. BASED ON THESE ADDITIONS, THE ASSESSING OFFICER ALSO INITIATED PEN ALTY PROCEEDINGS U/S. 271(1)(C) OF THE IT ACT AND IMPOSED A PENALTY OF RS .6,97,784/- AGAINST THE ASSESSEE REPRESENTING TO EQUAL TO TAX SOUGHT TO BE EVADED. THE ASSESSEE CARRIED THE PENALTY MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE ACTION TAKEN BY THE ASSESSING OFFICER, VIDE THE IMP UGNED ORDER. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE QUANTUM OF ASSESSMENT WAS CONFIRMED BY THE LD. CIT(A) IN APPEAL VIDE EXPARTE ORDER DATED 17.02.2012, WHICH WAS CHALLENGE D BEFORE THE TRIBUNAL IN APPEAL NO. 1452/DEL/2012. THE TRIBUNAL VIDE ORDER D ATED 24.07.2015 RESTORED THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE ISSUE AFRESH. THEREFORE, AT THIS STAGE, THE PENALTY SUSTAINED BY THE LD. CIT(A) DOES NOT STAND AT ALL. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD AND WE FIND THA T ONCE THE QUANTUM OF ADDITION, ON THE BASIS OF WHICH THE IMPUGNED PENALT Y WAS IMPOSED, HAS BEEN RESTORED BACK TO THE FILE OF THE LD. CIT(A), WE HAV E NO REASON TO DECIDE WHETHER THE ASSESSEE IS LIABLE FOR PENALTY OR NOT A T THIS STAGE. ACCORDINGLY, THE ITA NO. 2482/DEL/2015 3 MATTER RELATING TO PENALTY IS ALSO RESTORED BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE SAME AFRESH IN THE LIGHT OF QUANTUM AP PEAL PENDING FOR DISPOSAL BEFORE HIM. THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESE RVES TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JULY, 2018. SD/- SD/- (BHAVNESH SAINI) ( L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 TH JULY, 2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI