Vishvajit Gautam, New Delhi V. ACIT, Central circle-8, New Delhi

ITA 2519/DEL/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5959 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VISHVAJIT GAUTAM
• Keywords: Capital asset
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘F’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA No.2519/Del/2018 Assessment Year: 2012-13 Sh. Vishvajit Gautam, C-4/331, Sector-6, Rohini, New Delhi Vs. ACIT, Central Circle-8, New Delhi PAN :AFTPG0824J (Appellant) (Respondent) ORDER PER SAKTIJIT DEY, JM: This is an appeal by the assessee against order dated 31.01.2018 of learned Commissioner of Income Tax (Appeals)-24, New Delhi, confirming the penalty imposed of Rs.18,25,940/- under section 271AAA of the Income-tax Act, 1961 (for short ‘the Act’) for assessment year 2012-13. 2. Briefly the facts are, the assessee is a resident individual. For the assessment year under dispute, the assessee filed his Appellant by Sh. Vishvajit Gautam, Assessee Sh. Rajesh Jain Respondent by Sh. Atiq Ahmed, Sr.DR Date of hearing 28.03.2022 Date of pronouncement 28.03.2022 2 ITA No. 2519/Del/2018 AY: 2012-13 return of income on 20.11.2013 declaring income of Rs.1,58,340/-. The assessment in case of the assessee was completed under section 143(3) of the Act determining the total income of Rs.30,83,340/-. The variation between the income returned by the assessee and determined by the Assessing Officer was due to addition of an amount of Rs.29,25,000/- representing the cash component of purchase consideration alleged to have been received by the assessee over and above declared sale consideration on sale of immovable property at Karol Bagh, New Delhi. The assessment order so passed was challenged by the assessee before learned Commissioner (Appeals). After considering the submissions of the assessee in the context of materials on record, learned Commissioner (Appeals) was of the view that during the year under consideration, the assessee has received part of the payment and has also given part possession. Therefore, he called upon the assessee to show-cause as to why his income should not be enhanced as the assessee along with his co-owner has transferred the property during the year under consideration in terms of section 2(47)(v) of the Act, read with section 53A of the Transfer of Property Act. Though, the assessee objected to the proposed enhancement of income, however, 3 ITA No. 2519/Del/2018 AY: 2012-13 rejecting the submissions of the assessee, learned Commissioner (Appeals) added back an amount of Rs.1,82,59,375/- as undisclosed long term capital gain. Against the addition so made, the assessee went in further appeal before the Tribunal. However, during the pendency of assessee’s appeal before the Tribunal, the Assessing Officer initiated proceeding for imposition of penalty under section 271AAA of the Act and ultimately passed an order under the said provision imposing penalty of Rs.18,25,940/-. The penalty so imposed was also confirmed by learned Commissioner (Appeals). 3. We have considered rival submissions and perused the materials on record. The assessee appearing in person submitted that the entire addition made by learned Commissioner (Appeals) based on which penalty under section 271AAA was imposed, in the meanwhile, has been deleted by the Tribunal while deciding the quantum appeal. 4. Learned Departmental Representative fairly agreed with the aforesaid submission of the assessee. 5. Having perused the order dated 04.06.2018 passed in ITA No. 5805/Del/2015 and Ors. it is observed, the addition made by learned Commissioner (Appeals) has been fully deleted by the 4 ITA No. 2519/Del/2018 AY: 2012-13 Tribunal while deciding assessee’s appeal. Thus, when the addition based on which the penalty under section 271AAA was imposed is not in existence, penalty order passed cannot have any independent existence. Accordingly, we delete the penalty imposed of Rs.18,25,940/- under section 271AAA of the Act. Grounds are allowed. 6. In the result, the appeal is allowed. Order pronounced in the open court on 28 th March, 2022 Sd/- Sd/- (N.K. BILLAIYA) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 28 th March, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi