Mr. Pradeep Kumar Gupta, New Delhi V. ITO, New Delhi

ITA 263/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66009 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 13-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR KADIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T.A. NO.263/DEL/2012 ASSESSMENT YEAR : 2006-07 MR. PRADEEP KUMAR GUPTA, INCOME-TAX OFFICER, A-179, NAYA BANS, VS. WARD 28(1), NEW DELHI. NEW DELHI-110006. PAN : AHTPG8488L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANU GIRI, ADVOCATE. RESPONDENT BY : SHRI RAJESH KUMAR KADIA, SR. DR. DATE OF HEARING : 13-12-2012 DATE OF PRONOUNCEMENT : 13-12-2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 30-11-2011 PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY, NE W DELHI. THE ONLY GROUND RAISED BY THE ASSESSEE IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) WAS NOT JUSTIFIED IN C ONFIRMING THE PENALTY OF RS.29,918/- IMPOSED UNDER SEC. 271(1)(C) OF THE INC OME-TAX ACT, 1961 (THE ACT), PARTICULARLY WHEN THE NECESSARY EVIDENCES WER E ADDUCED BY THE ASSESSEE AND THE PAYMENT MADE TO OLD SUNDRY CREDITO RS WAS ADDED IN THE ASSESSMENT, BEING THE AMOUNT SURRENDERED BY THE ASS ESSEE FOR TAXATION, ITA NO.263/DEL/2012 2 SUBJECT TO NO PENALTY AND ALSO TO BUY PEACE WITH TH E DEPARTMENT AS THE AMOUNT WAS NOT CONFIRMED WITH THE CREDIT. 2. DURING HEARING WE HAVE HEARD SHRI MANU GIRI, LEA RNED COUNSEL FOR THE ASSESSEE AND SHRI RAJESH KUMAR KADIA, LEARNED SR.DR . THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUND RAISED BY FURTHER SUBMITTING THAT DUE TO SOME DISPUTE WITH M/ S. RAMJILAL & SONS, THEY DID NOT COOPERATE WITH THE ASSESSEE AND THE SURREND ER WAS MADE WITH A CONDITION THAT NO PENALTY WILL BE IMPOSED UPON THE ASSESSEE, WHEREAS THE LEARNED SR. DR DEFENDED THE IMPOSITION AS WELL AS C ONFIRMATION OF PENALTY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT T HE ASSESSEE WAS DOING BUSINESS OF TRADING IN SUGAR AND FOOD-GRAINS, DECLA RED INCOME OF RS.1,21,226/- IN HIS RETURN FILED ON 30 TH OCTOBER, 2006. THE CASE WAS SELECTED FOR SCRUTINY ON RANDOM BASIS IN CASS. PUR SUANCE TO NOTICES ISSUED BY THE DEPARTMENT THE ASSESSEE APPEARED FROM TIME T O TIME AND FILED NECESSARY DETAILS. THE ASSESSEE ALSO PRODUCED BOOK S OF ACCOUNTS AND VOUCHERS WHICH WERE TEST-CHECKED BY THE ASSESSING O FFICER. THE ASSESSEE DECLARED TURNOVER OF RS.54,22,137/- AND SHOWED THE GROSS PROFIT AT RS.1,55,551/-. THE BOOKS OF ACCOUNTS OF THE ASSESS EE ARE ALSO AUDITED. DURING VERIFICATION OF BOOKS IT WAS NOTED THAT IN T HE ACCOUNT OF THE ASSESSEE ITA NO.263/DEL/2012 3 IN THE CASE OF M/S. RAMJILAL & SONS, THE CORRECT PO SITION WAS NOT REFLECTED. AS PER THE REVENUE THERE WAS NO OPENING BALANCE OF THE ASSESSEE IN THE BOOKS OF M/S. RAMJILAL & SONS, WHEREAS THE ASSESSEE DEBITED SUM OF RS.75,000/- BY CHEQUE NO.61487 AND ANOTHER AMOUNT O F RS.74,999/- BY CHEQUE NO.61488. AS PER THE BANK STATEMENT, THE AS SESSEE WITHDREW THESE AMOUNTS IN CASH. WHEN THE ASSESSEE WAS CONFRONTED AS THE FIGURE IS NOT REFLECTED IN THE BOOKS OF M/S. RAMJILAL & SONS, THE ASSESSEE AGREED FOR THE DISALLOWANCE AND SURRENDERED THE SAME FOR TAXATION. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UNDER SEC. 271(1)(C) OF THE ACT. AS PER THE VERSION OF THE ASSESSEE THE SURRENDER WAS MADE SIMP LY TO BUY PEACE WITH THE DEPARTMENT AND CONSEQUENTLY, DID NOT PREFER ANY FUR THER APPEAL. IT WAS ALSO PLEADED THAT THE SURRENDER WAS MADE ON THE ASSURANC E OF THE DEPARTMENT THAT NO PENALTY WILL BE LEVIED. WE FIND THAT THE ASSESS EE IN HIS WRITTEN SUBMISSIONS HAS ALSO SPECIFICALLY MENTIONED THAT TH E ADDITION WAS AGREED SIMPLY TO BUY PEACE AND TO AVOID LITIGATION (PAGE 4 OF THE PAPER BOOK). AT PAGE 5 ALSO (PARA 3.3 OF THE WRITTEN SUBMISSIONS) O F THE PAPER BOOK IT HAS SPECIFICALLY BEEN MENTIONED THAT THE CONCURRENCE OF ADDITION WAS MADE WITH THE CONDITION THAT NO PENALTY WILL BE IMPOSED ON TH E ASSESSEE AND THUS, THE IMPOSITION IS (AS PER THE ASSESSEE) IS BREACH OF TR UST. THE ASSESSEE HAS ALSO PLACED RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS IN HIS WRITTEN ITA NO.263/DEL/2012 4 SUBMISSIONS. UNDER THE PECULIAR FACTS OF THE CASE, THE ASSERTION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE, AND ALSO KEEPING IN VIEW THE SMALL AMOUNT OF PENALTY INVOLVED, WE DIRECT TO DELETE THE SAME. 4. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF THE LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONC LUSION OF THE HEARING ON 13 TH DECEMBER, 2012. SD/- SD/- ( B.C. MEENA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH DECEMBER, 2012. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.