Vijay Kumar Gupta (HUF), Secunderabad V. Dy. Commissioner of Income Tax , Circle-17(2), Hyderabad

ITA 277/Hyd/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8900 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 25-06-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MURTHY NAIK
• Assessee Lawyers: LAXMINIVAS SHARMA
• Keywords: Unexplained cash credit; Set aside
• Section: 201

Judgement Text

IN THE INCOME TAX APPEL LATE TRIBUNAL B , BENCH BEFORE SHRI C.N.PRASAD , JM & SHRI M.BALAGANESH, AM ITA NO. 277/HYD/2019 ( ASSESSMENT YEAR : 2014 - 1 5 ) VIJAY KUMAR GUPTA HUF NO.104, SURYA TOWERS S.P.ROAD SECUNDERABAD 500 003 VS. DCIT CIRCLE - 17(2) HYDERABAD PAN/GIR NO. AAAHV9466M ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY SHRI LAXMINIVAS SHARMA REVENUE BY SHRI A.N.MURTHY NAIK DATE OF HEARING 25 / 06 /20 20 DATE OF PRONOUNCEMENT 30 / 07 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 227 /HYD/201 9 FOR A.Y. 201 4 - 15 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1 , HYDERABAD IN APPEAL NO. 0037/2017 - 18/DCIT, CIRCLE - 17(2)/CIT(A) - 1/HYD/2018 - 19 DATED 25 /01/2019 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THE ONLY EFFECTIVE ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S.2 71(1)(C) OF THE ACT IN THE SUM OF RS.4,42,500/ - IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO . 277/HYD/2019 VIJAYKUMAR GUPTA HUF 2 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HUF HAD FILED HIS RETURN OF INCOME ON 31/07/2014 FOR THE A.Y.2014 - 15 DECLARING TOTAL INCOME OF RS.4,56,350/ - . THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 20/12/2016 WHEREIN AN ADDITION OF RS.14,75,000/ - WAS MADE TOWARDS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT IN RESPECT OF CASH DEPOSITS MADE IN BANK ACCOUNT. THE LD. AR BEFORE US INFORMED THAT THE QUANTUM APPEAL AGAINST THE ASSESSMENT ORDER IS STILL PENDING BEFORE THE LD. CIT(A). MEANWHILE, THE LD. AO PROCEEDED TO LEVY PENALTY U/S.271(1)(C) OF THE ACT VIDE HIS ORDER DATED 30/06/2017 IN THE SUM OF RS.4 ,42,500/ - . AGAINST THIS PENALTY ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHICH WAS DISMISSED EX PARTE BY THE LD. CIT(A). WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT SUFFICIENT OPPORTUNITIES WERE INDEED GIVEN BY THE LD. CIT(A) TO THE ASSESSEE . WE FIND THAT THE ASSESSEE HAD BEEN SEEKING ONLY ADJOURNMENTS BEFORE THE LD. CIT(A). AT THE SAME TIME, WE FIND THAT THE LD. CIT(A) HAD NOT DISCUSSED ANYTHING OR EVEN WHISPER ED ABOUT THE PENDENCY OF QUANTUM APPEAL BEFORE HER. WE FIND THAT THE ISSUE FOR WHICH AN ADDITION OF RS.14,75,000/ - WAS MADE BY THE LD. AO IN THE ASSESSMENT WAS NOT EVEN MENTIONED / DISCUSSED BY THE LD. CIT(A) IN HER ORDER. WE HOLD THAT SINCE QUANTUM APPEAL IS STILL PENDING BEFORE THE LD. CIT(A) AS INFORMED BY THE LD. AR BEFORE U S, IT WOULD BE PREMATURE TO DECIDE THE PENALTY APPEAL FIRST. TO THIS EXTENT , WE HOLD THAT THE LD. CIT(A) ERRED IN DECIDING THE PENALTY APPEAL FIRST WITHOUT DISPOSING OFF THE QUANTUM APPEAL. HENCE, WE DEEM IT FIT AND APPROPRIATE IN THE INTEREST OF JUSTICE A ND FAIR PLAY , TO SET ASIDE THIS APPEAL TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO THE LD. CIT(A) TO DECIDE BOTH THE QUANTUM APPEAL AS WELL AS THIS PENALTY APPEAL TOGETHER. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN REASONABLE OPPORTUNITY OF BEIN G HEARD. THE LD. DR ALSO AGREED FOR ITA NO . 277/HYD/2019 VIJAYKUMAR GUPTA HUF 3 SETTING ASIDE OF THE APPEAL TO THE LD. CIT(A) TO DECIDE BOTH THE APPEA LS TOGETHER. THE LD. CIT(A) IS DIRECTED ACCORDINGLY. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT ON THIS 30 / 07/ 2020 . SD/ - ( C.N. PRASAD ) SD/ - ( M.BALAGANESH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 30 / 07 / 2020 . KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), HYDERABAD 4. CIT 5. DR, ITAT, HYDERABAD 6. GUARD FILE. //TRUE COPY// ITA NO . 277/HYD/2019 VIJAYKUMAR GUPTA HUF 4 DATE INITIAL 1. DRAFT DICTATED ON 29/06/2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29/06/2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND ME MBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATC H OF ORDER. 11. DICTATION PAD IS ENCLOSED YES