Shailendra Kumar Gautam, New Delhi V. ACIT, Central circle-8, New Delhi

ITA 2518/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9945 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 11-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 132

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.2518/DEL/2018 ASSESSMENT YEAR: 2012-13 SH. SHAILENDRA KUMAR GAUTAM, RZ-36A/1, FIRST FLOOR, BANK OF BARODA GALI, MAHAVIR ENCLAVE, NEW DELHI VS. ACIT, CENTRAL CIRCLE-8, NEW DELHI PAN :ADCPG0128L (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST OR DER DATED 31/01/2018 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-24, NEW DELHI [IN SHORT LEARNED CIT(A)] IN RELATION TO PENALTY LEVIED UNDER SECTION 271AAA OF INCOME-TAX A CT, 1961 (IN SHORT THE ACT) FOR ASSESSMENT YEAR 2012-13. THE G ROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: APPELLANT BY MS. SANGEETA SINGH, CA RESPONDENT BY SH. MAHESH THAKUR, SR.DR DATE OF HEARING 14.07.2021 DATE OF PRONOUNCEMENT 27.07.2021 2 ITA NO.2518/DEL/2018 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE PENALTY ORDER U/S 271AAA OF THE INCOME T AX ACT, 1961 FOR THE A.Y. 2012-13 DATED 29.03.2017 PASSED BY THE LD. ACIT, CENTRAL CIRCLE-8, NEW DELHI CREATING A DEMAND OF RS . 21,91,130 IS BAD IN LAW AND AGAINST THE FACTS OF CASE AND LD. CI T(A) HAS ERRED IN CONFIRMING THE SAME VIDE HIS ORDER DATED 31.01.2 018. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE ORDER OF THE LD. AO WHICH IS CONFIRMED B Y LD. CTT(A) IS WRONG, PERVERSE, ILLEGAL AND AGAINST THE PROVISIONS OF LAW AND LIABLE TO BE QUASHED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE LD. AO HAS ERRED IN INITIATING AND LEVYI NG THE PENALTY U/S 271 AAA OF THE INCOME TAX ACT, 1961 ON 29.03.20 17 AMOUNTING TO RS. 21,91,130/- WHEN NO FINDING WAS RE CORDED BY HIM, IN THAT REGARD DURING ASSESSMENT PROCEEDINGS A ND LD. CIT(A) HAS ERRED IN CONFIRMING THE SAME. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE LD. CIT(A), HAS ERRED IN CONFIRMING THE PENALTY ORDER PASSED BY LD. ACIT, WHEN THE QUANTUM APPEAL IN RESP ECT OF THE APPELLANT CASE WERE PENDING BEFORE THE HONBLE INCO ME TAX APPELLATE TRIBUNAL DELHI. 5. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, MO DIFY, SUBSTANTIATE, DELETE AND /OR TO RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING, IF NECESSITY SO ARISES. 2. AT THE OUTSET, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE QUANTUM ADDITION IN RESPECT OF WHICH THE P ENALTY UNDER SECTION 271AAA OF THE ACT HAS BEEN LEVIED, HAS ALRE ADY BEEN DELETED BY THE TRIBUNAL AND, THEREFORE, THE PENALTY CANNOT SURVIVE AND, ACCORDINGLY, SHOULD BE DELETED. THE LEARNED CO UNSEL OF THE ASSESSEE FILED A COPY OF THE DECISION OF THE TRIBUN AL IN ITA NO. 5804/DEL/2015 & ITA NO. 5897/DEL/2015 FOR ASSESSMEN T YEAR 2012-13 IN QUANTUM PROCEEDINGS. 3. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE O RDER OF THE LOWER AUTHORITIES, HOWEVER, COULD NOT CONTROVER T THE FACT THAT QUANTUM ADDITION HAS ALREADY BEEN DELETED BY THE TR IBUNAL. 3 ITA NO.2518/DEL/2018 4. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. IN THE CASE OF THE ASSESSEE, A SEARCH A ND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AND DURING WHICH, EVIDENCE RELATED TO TRANSFER OF ANCES TRAL PROPERTY BY THE ASSESSEE ALONG WITH TWO OTHER CO-OWNERS AND REC EIPT OF PART PAYMENT FROM TRANSFEREE, WERE FOUND AND SEIZED. ACC ORDING TO THE ASSESSING OFFICER THERE WAS A CONTRACT TO SALE THE PROPERTY TO TRANSFEREE AND PART POSSESSION OF THE PROPERTY WAS ALSO GIVEN TO THE BUYER. THE ASSESSING OFFICER HELD THAT THE ASSE SSEE RECEIVED RS. 79.50 LAKHS AS A SHARE OF TOTAL CASH RECEIVED A ND ONE THIRD SHARE OF BALANCE CONSIDERATION OF 1.17 CRORE WHICH WORKS OUT TO BE 35.10 LAKHS, MUST HAVE BEEN RECEIVED BY THE ASSE SSEE. ACCORDINGLY, HE MADE ADDITION OF 35.10 LAKHS. IN VIEW OF THE UNDISCLOSED INCOME ASSESSED IN THE SPECIFIED ASSESS MENT YEAR, THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271AAA OF THE ACT AT THE RATE OF 10% OF THE UNDISCLOSED INCOME, W HICH WAS WORKED OUT TO RS. 21,91,130/-. THE LEARNED CIT(A) D ISMISSED THE APPEAL OF THE ASSESSEE. WE FIND THAT THE TRIBUNAL I N ITA NO.5804/DEL/2015 & ITA N0. 5891/DEL/2015 FOR ASSESS MENT YEAR 2012-13 DELETED THE QUANTUM ADDITION FOR UNDIS CLOSED INCOME OBSERVING AS UNDER: 16. ON THE GIVEN FACTS OF THE CASE IN HAND, WE ARE OF THE OPINION THAT THE TRANSFEREE WAS NOT WILLING TO PERFORM HIS OBLIGATIONS IN THE FY ITSELF THOUGH THE LITIGATION TOOK PLACE IN THE S UCCEEDING YEAR. MOREOVER, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. BALBIR SINGH MAINI C.S ATWAL [SUPRA] HAS CLEARLY LAID DOWN THE PRINCIPLE THAT NO CONTRACT IN THE EYES OF LAW IS ENFORCED U/S 53A OF THE TRANSFER OF PROPERTY ACT AFTER 2001 UNLESS THE SAID CONTRACT IS REGISTERED AND UNDISPUTED FACT IS THAT THE AGREEMEN T RELIED UPON BY THE REVENUE AUTHORITIES IS AN UNREGISTERED AGREEMEN T. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREM E COURT [SUPRA] 4 ITA NO.2518/DEL/2018 WE SET ASIDE THE FINDING OF THE LD. CIT(A) AND DIRE CT TO DELETE THE IMPUGNED ADDITIONS. 4.1 IN OUR OPINION, WHEN THE UNDISCLOSED INCOME ASSESS ED BY THE ASSESSING OFFICER ITSELF, HAS BEEN DELETED BY T HE TRIBUNAL, THE PENALTY LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE LEARNED CIT(A) ON SAID UNDISCLOSED INCOME, CANNOT SURVIVE. ACCORDINGLY, WE DELETE THE PENALTY LEVIED BY THE ASSESSING OFFIC ER, WHICH WAS CONFIRMED BY THE LEARNED CIT(A). THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ACCORDINGLY ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2021. SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 TH JULY, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI