PRAGATI FINSEC LTD., NEW DELHI V. ITO, WARD -20(1), NEW DELHI

ITA 2914/DEL/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0704 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDRA MEENA
• Assessee Lawyers: MAYANK PATWARI A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 2914 /DEL/2018 : ASSTT. YEAR : 2002 - 03 PRAGATI FINSEC LTD., C/O M. C. JAIN & CO., 4701/21, A NSARI ROAD, DARYAGANJ, NEW DELHI - 110002 VS INCOME TAX OFFICER, WARD - 20(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AA CP4524B ASSESSEE BY : SH. MAYANK PATWARI, A CA REVENUE BY : SH. SUREND RA MEENA , SR. DR DATE OF HEARING : 03.10 .201 8 DATE OF PRONOUNCE MENT : 03 .10 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 26 .02.2018 OF LD. CIT(A ) - 7 , NEW DELHI . 2. THE ONLY GRIEVANCE OF THE A SSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AMOUNTING TO RS.10,82,210/ - . 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE AO MADE THE ADDITION OF RS. 2 5,06,400/ - ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT AND RS.5,25,000/ - ON ACCOUNT OF ACCOMMODATION ENTRY RECEIVED. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) DELETED THE ADDITION OF RS.5 ,25,000/ - VIDE ORDER DATED 11.12.2017 AND THE REMAINING ITA NO . 2914 /DE L/2018 PRAG ATI FINSEC LTD. 2 AMOUNT OF RS.25,06,400/ - WAS DELETED BY THE ITAT BENCH SMC , NEW DELHI VIDE ORDER DATED 20.06.2018 IN ITA NO. 634/DEL/2018 FOR THE ASSESSMENT YEAR 2002 - 03 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). 4. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR ALTHOUGH SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . I HAVE CONSIDERED THE SUBMISSIONS O F BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ADDITION ON THE BASIS OF WHICH THE AO LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT HAS ALREADY BEEN DELETED BY THE LD. C IT(A)/ITAT. THEREFORE, THE IMPUGNED PENALTY IS NOT LEVIABLE U/S 271(1)(C) OF THE ACT, WHEN THE ADDITION HAS ALREADY BEEN DELETED. 6. ON A SIMILAR ISSUE, THE HON BLE SUPREME COURT IN THE CASE OF K. C. BUILDERS & OTHERS VS ACIT (2004) 265 ITR 562 HAS HELD AS UNDER: WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND TH E PENALTY IS LIABLE TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 7. IN VIEW OF THE ABOVE, THE PENALTY SUSTAINED BY THE LD. CIT(A) IS DELETED. ITA NO . 2914 /DE L/2018 PRAG ATI FINSEC LTD. 3 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON O UNCED I N TH E COURT ON 03 /10 / 2018 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 03 /10 /2018 *SUBODH* COPY FORWA RDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR