Shri Pramod Kumar, New Delhi V. DCIT, New Delhi

ITA 2798/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3891 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 05-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Unexplained cash credit
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 2798 /DEL/2017 : ASSTT. YEAR : 2005 - 0 6 PRAMOD KUMAR, 13/34, FOURTH FLOOR, W.E.A. KAROL BAGH, NEW DELHI - 110005 VS DCIT, CENTRAL CIRCLE - 29 , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A LJPK6448A ASSESSEE BY : SH. ANUNAV KUMAR, ADV. REVENUE BY : SH. B. R. MISHRA , SR. DR DATE OF HEARING : 06.02 .201 8 DATE OF PRONOUNCEMENT : 06 . 0 2 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.03.2017 OF LD. CIT(A) - 3 0 , NEW DELHI . 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE SUSTENANCE OF PENALTY OF RS. 10,37,963 / - LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE RELATING TO THE ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTY WAS LEVIED BY THE AO HAS BEEN RESTORED TO THE FILE OF THE AO BY THE ITAT BENCH F , NEW DELHI IN ITA NO.5351/DEL/2014 VIDE ORDER DATED 18.12.2017. THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE WAS NOT CONTROVERTED BY THE LD. DR. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT THE ISSUE RELATING TO THE ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTY WAS LEVIED BY THE AO , WAS RESTORED TO THE FILE OF THE AO IN ITA NO. 2798 /DEL /201 7 PRAMOD KUMAR 2 ITA NO. 5351/DEL/2014 FOR THE ASSESSMENT YEAR 2005 - 06 IN ASSESSEE S OWN CASE . THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARAS 6 & 7 OF THE ORDER DATED 18.12.2017 WHICH READ AS UNDER: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND CONSIDERABLE COGENCY IN THE SUBMISS IONS OF THE ASSESSEE S COUNSEL THAT IN THE CASE OF ASSESSEE FOR THE ASSESSMENT YEAR 2004 - 05, THE ITAT VIDE ITS ORDER DATED 17.4.2015 PASSED IN ITA NO. 6126/DEL/2013 HAS RESTORED THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION, ON THE SIMILAR AND IDENTI CAL ISSUES. FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING THE OPERATIV E PORTION OF THE ORDER AS UNDER : - 4. IT WAS SUBMITTED ON BEHALF OF THE APPELLANT THAT IN THE SIMILAR CASES THIS HON BLE TRIBUNAL IN ITA NO. 4636 & 4637/DEL/2012 HAS RESTORED THE MAT TER TO THE FILE FOR FRESH ADJUDICATION. THE OPERATIVE PORTION OF THE ORDER IS AS UNDER: - 22. ADMITTEDLY CERTAIN ASSESSMENT OF SHRI TARUN GOYAL, THE KIN PIN ARE AT VARIOUS STAGES AND HAVE NOT REACHED THE TRIBUNAL. UNDER THESE CIRCUMSTANCES, IT WOULD NOT BE POSSIBLE TO HAVE IN OVER ALL VIEW OF THE MATTER AND ELIMINATE CHAIN / MULTIPLE TRANSACTION, FOR ARRIVING AT THE CORRECT ASSESSABLE AMOUNT. THUS WE HAVE NO OTHER ALTERNATIVE BUT TO SET ASIDE ALL THESE APPEALS TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 23. THE AO SHALL AFTER EXAMINING THE EVIDENCE SUBMITTED BY THE ASSESSEE, CONSIDER ALL THE CASES TOGETHER AND; A) RESTRICT THE ADDITION U/S 68 TO ONLY THE PEAK UNEXPLAINED CREDIT IN EACH CASE AFTER ELIMINATION CIRCULAR TRANSACTION . B) TO ELIMINATE TAXATION OF THE SAME AMOUNT MULTIPLE TIMES, DUE TO THE CHAIN TRANSACTIONS WHICH RESULTED DUE TO LAYERING INDULGED BY THE ASSESSEE. C) CONSIDER THE MATERIAL ON RECORD AND THE PRECEDENCE AVAILABLE ON THE ISSUE AND DETERMINE THE PERCENTAGE OF COMMISSION, WHICH THE ASSESSEES WOULD HAVE EARNED AND BRING THE SAME TO TAX. 5. THEREFORE, IN THIS CASE ALSO SINCE THE CASE ALSO BELONGS TO THE SAME GROUP AND HAVING NEXUS WITH THE ASSESSMENT PROCEEDINGS OF MR. TARUN GOYAL, WE RESTORE THE MATTER TO THE FILE OF THE AO WITH A ITA NO. 2798 /DEL /201 7 PRAMOD KUMAR 3 DIRECTION THAT TO CONSIDER THE EXPLANATION OFFERED, IF ANY, IN THE LIGHT OF PROVISION OF SECTION 69 OF THE INCOME TA X ACT AND REDO THE ASSESSMENT. 7. RESPECTFULLY FOLLOWING THE AFORESAID PRECEDENT, WE RESTORE THE MATTER TO THE F ILE OF THE AO WITH THE DIRECTION THAT TO CONSIDER THE EXPLANATION OFFERED, IF ANY, IN THE LIGHT OF PROVISION OF SECTION 69 OF THE INCOME TAX ACT, 1961 AND REDO THE ASSESSMENT. 5 . SINCE, THE ISSUE RELATING TO THE ADDITION ON THE BASIS OF WHICH IMPUGNED P ENALTY WAS LEVIED HAS BEEN RESTORED TO THE FILE OF THE AO VIDE AFORESAID REFERRED TO ORDER, T HEREFORE, THIS ISSUE RELATING TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT IS ALSO RESTORED TO THE FILE OF THE AO TO BE DECIDED AFTER CONSIDERING THE OUTCOME OF THE AFORESAID REFERRED TO ISSUE ON QUANTUM ADDITION. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORD E R PRONOUNCED IN THE COU RT ON 06 /0 2/2018 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 06 /02/2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR