Sh. Ajay Kumar S/o Man Mohan Dass, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 2954/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2842 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 12-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R C DANDAY
• Assessee Lawyers: DESH RAJ
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: A , NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 2954 /DEL/201 4 AY: 20 09 - 10 SH. AJAY KUMAR S/O SH. MOHAN DASS KASSAWAN DT. MUZAFFARNAGAR C/O SH JK JAIN, ADVOCATE 9, KATHERA SAYADAN MUZAFFARNAGAR PAN: ANTPK 1853 H VS . ITO, WARD 1(1) MUZAFFARNAGAR (APPELLANT) (RESPONDENT) APPELLAN T BY SH. DESH RAJ, C.A. RESPONDENT BY SH. R.C. DANDAY, SR.D.R. DATE OF HEARING 1 5 TH JUNE, 2017 DATE OF PRONOUNCEMENT 15 TH JUNE, 2017 ORDER PER R.K. PANDA, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT. 31 ST DECEMBER, 2013 OF THE LD. CIT(A), MUZAFFARNAGAR RELATING TO ASSESSMENT YEAR (A.Y.) 20 09 - 10 . ITA NO. 2954/DEL/2014 A.Y. 2009 - 10 SH. AJAY KUMAR, MUZAFFARNAGAR 2 2. LEVY OF PENALTY OF RS.81,000 / - U/S 271(1)(C) OF THE INCOME TAX ACT , 1961 (FOR SHORT THE ACT ) BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL . 3. F ACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM TRADING OF SIM CARDS/SERVICE CARDS, RECHARGE COUPONS , CELL PHONE S ETC. HE FILED HIS RETURN OF INCOME ON 29TH SEPTEMBER , 2011 DECLARING TOTAL INCOME OF RS.2,21,010/ - . T HE A.O. COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS. 6,24,090/ - . I N THE ASSESSMENT ORDER TH E A.O. HAD MADE AD HOC DISALLOWANCE OF RS.24,000/ - OUT OF SCOOTER EXPENSES AND TELEPHONE EXPENSES , RS.23 ,000 / - ON ACCOUNT OF LOW WITHDRAWALS FOR HOUSEHOLD EXPENSES , AND RS. 3,56,080/ - BEING THE DIFFERENCE IN THE COMMISSION ACCOUNT AS PER THE 26AS STATEMENT AND THE INCOME DECLARED BY THE ASSESSEE IN THE PROFIT AND LOSS ACCOUNT . THE ASSESSEE DID NOT PREFER A NY APPEAL AGAINST THE ABOVE ADDITIONS. ITA NO. 2954/DEL/2014 A.Y. 2009 - 10 SH. AJAY KUMAR, MUZAFFARNAGAR 3 SUBSEQUENTLY T HE A.O. INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. 4. S INCE THERE WAS NON - COMPLIANCE FROM THE SIDE OF THE ASSESSEE THE A.O. LEVIED PENALTY OF RS.81,000 / - U/S 271(1)(C) OF THE ACT. ON APPEAL THE LD.CIT(A) ALSO CONFIRMED THE PENALTY LEVIED BY THE A.O. IN THE EX PARTE ORDER PASSED BY HIM. 5. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE T RIBUNAL . 6. THE LD.COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT DUE TO SOME HEALTH PROBLEMS OF THE BRO THER OF THE PREVIOUS C HARTERED A CCOUNTANT HE COULD NOT APPEAR BEFORE THE A.O. AND THE LD. CIT(A) TO SUBSTANTIATE THE CASE OF THE ASSESSEE . H E SUBMITTED THAT IN THE INTEREST OF JUSTICE AN OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO SUBSTANTIATE HIS CASE SINCE THE PENALTY HAS BEEN LEVIED ON ACCOUNT OF AD HOC DIS ALLOWANCE AND DUE TO NON - RECONCILIATION OF THE 26AS STATEMENT . 7. THE LD.D.R. ON THE OTHER HAND STRONGLY OPPOSED THE SUBMISSION OF THE L D. COUNSEL FOR THE ASSESSEE . HE SUBMITTED THAT ADEQUATE OPPORTUNITY WAS GRANTED BY THE A.O. AS WELL AS BY THE CIT(A), HOWEVER , THE ASSESSEE NEVER BOTHERED TO APPEAR ITA NO. 2954/DEL/2014 A.Y. 2009 - 10 SH. AJAY KUMAR, MUZAFFARNAGAR 4 BEFORE THE A.O. OR THE CIT(A). THEREFORE THE ORDER OF CIT(A) CONFIRMING THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT SHOULD BE UPHELD. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE A.O. AND THE LD. CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE A.O. IN THE INSTANT CASE MADE AD HOC DISALLOWANCE OUT OF SCOOTER AND TELEPHONE EXPENSES AND ON ACCOUNT OF LOW WITHDRAWALS FOR HOUSEHOLD EXPENSES . FURTHER HE ALSO MADE CERTAIN DISALLOWANCES DUE TO SOME DIFFERENCE IN THE COMMISSION DECLARED BY THE ASSESSEE AND THE COMMISSION SHOWN IN 26AS STATEMENT . WE FIND THE ASSESSEE DID NOT PREFER AN Y APPEAL AGAINST THE ABOVE ADDITIONS. D URING THE PENALTY PROCEEDINGS THE ASSESSEE DID NOT APPEAR BEFORE THE A.O. FOR WHICH THE A.O. LEVIED PENALTY OF RS.81,000 / - U/S 271(1)(C) OF THE ACT WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A). IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT HE BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE THAT NO PENALTY U/S 271(1)(C) OF THE ACT IS L EVIABLE IN THE INSTANT CASE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT FIT AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE A.O. WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ITA NO. 2954/DEL/2014 A.Y. 2009 - 10 SH. AJAY KUMAR, MUZAFFARNAGAR 5 ASSESSEE TO SUBSTAN TIATE HIS CASE. AT THE SAME TIME THE ASSESSEE IS ALSO DIRECTED TO DEPOSIT AN AMOUNT OF RS.1000/ - BEING COST FOR NON APPEARANCE BEFORE THE A.O. AND THE LD. CIT(A). THE A.O. SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF I.E. ON 15 TH JUNE, 2017. SD/ - SD/ - (SUCHITRA KAMBLE) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 1 5 TH JUNE, 2017 * MANGA ITA NO. 2954/DEL/2014 A.Y. 2009 - 10 SH. AJAY KUMAR, MUZAFFARNAGAR 6 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES