Shri Sunil Kumar Aggarwal, New Delhi V. ITO, New Delhi

ITA 2978/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3324 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHNA PAUL
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO . 29 78 /DEL/20 1 6 A.Y : 200 5 - 0 6 SH. SUNIL KUMAR AGGARWAL, 2165, GALI HANUMAN PRASAD, MASJID KHAZOOR, CHANDNI CHOWK, DELHI 110 006 (PAN: AAEPA6306K) VS ITO, WARD - 29(2) OLD WARD, NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : S H . SATISH KHOSLA, ADV. DEPARTMENT BY : MS. ASHNA PAUL, SR. DR ORDER ORDER ORDER ORDER THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 18.3.2016 PASSED BY THE LD. CIT(A)-34, NEW DELHI, RELEVANT TO ASSESSMENT YEAR 2005-06. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT DISPUTED FOR THE S AKE OF BREVITY. 3. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT AT T HE TIME OF FILING THE APPEAL THE DEFECT NOTICE WAS ISSUED TO THE ASSESSEE STATI NG THAT TRIBUNALS FEES SHORT BY RS. 9500/-. HOWEVER, LD. COUNSEL OF THE ASSESSEE HA S STATED THAT THIS APPEAL IS RELATING TO PENALTY UNDER SECTION 271(1) AND WILL BE GOVERNED BY CLAUSE (D) OF 2 SECTION 253(6) OF THE I.T. ACT, 1961 AND THEREFORE , THE TRIBUNAL FEE OF RS. 500/- DEPOSITED WITH THE APPEAL IS CORRECT. IN ORDER TO SUPPORT HIS VIEW, HE RELIED UPON THE DECISION DATED 14.1.2002 OF THE ITAT, DEL HI B SPECIAL BENCH IN THE CASE OF VINOD KHATRI VS. DCIT WHEREIN THE MAJORITY OF THE MEMBERS HELD THAT TRIBUNAL FEE FOR FILING THE APPEALS RELATING TO PEN ALTY UNDER SECTION 271(1) WILL BE GOVERNED BY CLAUSE (D) AND NOT CLAUSE (A), (B) AND (C) OF SECTION 253(6) OF THE ACT. IN VIEW OF THE ABOVE, HE REQUESTED THAT THE D EFECT POINTED BY THE REGISTRY OF SHORT FEE IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE, THE SAME MAY BE WITHDRAWN. 3.1 LD. COUNSEL OF THE ASSESSEE FURTHER STATED THAT HAT ITAT VIDE ORDER DATED 03.03.2017 PASSED IN ITA NO. 1740/DEL/2012 (AY 2005 -06) IN ASSESSEES OWN CASE SET ASIDE THE QUANTUM ADDITION AND RESTORED B ACK THE SAME TO THE FILE OF THE AO IN LIGHT OF THE ITAT G BENCH DATED 17.5.20 16 PASSED IN THE CASE OF SANTOSH AGGARWAL VS. ITO. THEREFORE, HE STATED THA T PENALTY IN DISPUTE DOES NOT STAND IN THE EYES OF LAW. HENCE, THE PENALTY IN D ISPUTE MAY BE DELETED BY ALLOWING THE APPEAL OF THE ASSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE A SSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE TRIBUNALS ORDERS, AS MENTIONED ABOVE. AS FAR AS 3 DEFECT POINTED OUT BY THE REGISTRY RELATING TO TRI BUNALS SHORT FEE BY RS. 9500/- IS CONCERNED, I NOTE THAT THE PRESENT APPEAL IS R ELATING TO PENALTY UNDER SECTION 271(1) AND WILL BE GOVERNED BY CLAUSE (D) OF SECT ION 253(6) OF THE I.T. ACT, 1961 AND THEREFORE, THE TRIBUNAL FEE OF RS. 500/- DEPOSITED WITH THE APPEAL IS CORRECT. TO SUPPORT MY AFORESAID VIEW, I DRAW SUPPO RT FROM THE DECISION DATED 14.1.2002 OF THE ITAT, DELHI B SPECIAL BENCH IN THE CASE OF VINOD KHATRI VS. DCIT WHEREIN THE MAJORITY OF THE MEMBERS HELD THAT TRIBUNAL FEE FOR FILING THE APPEALS RELATING TO PENALTY UNDER SECTION 271(1) W ILL BE GOVERNED BY CLAUSE (D) AND NOT CLAUSE (A), (B) AND (C) OF SECTION 253(6) O F THE ACT. IN VIEW OF THE ABOVE, I DO NOT FIND ANY DEFECT IN FILING THE APPEAL AND T HEREFORE, I PROCEED TO DECIDE THE APPEAL FURTHER. 5.1 I FURTHER FIND THAT ITAT VIDE ORDER DATED 03.0 3.2017 PASSED IN ITA NO. 1740/DEL/2012 (AY 2005-06) IN ASSESSEES OWN CASE H AS SET ASIDE THE QUANTUM ADDITION AND RESTORED BACK THE SAME TO THE FILE OF THE AO IN LIGHT OF THE ITAT G BENCH DATED 17.5.2016 PASSED IN THE CASE O F SANTOSH AGGARWAL VS. ITO. THE FACTS AND FINDINGS IN THE QUANTUM APPEAL , NARRATED BY THE ITAT G BENCH, NEW DELHI IN ITS ORDER DATED 03.3.2017 PASSE D IN ITA NO. 1740/DEL/2012 (AY 2005-06) IN THE ASSESSEES CASE ARE GIVEN IN PARA 5 TO 7 AT PAGE NOS. 3 TO 5 OF THE ORDER. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PARAS ARE REPRODUCED HEREUNDER:- 4 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE IMPUGNED ORDER PASSED BY TH E LD.CIT(A) AND THE DECISION DATED 17.5.2016 REFERRED BY THE LD. COUNSEL OF THE ASSESSEE OF THE ITAT, G BENCH , DELHI IN THE CASE OF SANTOSH AGGARWAL VS. ITO PASSED IN ITA NO. 1741/DEL/2012 (AY 2005-06). FOR THE SAKE OF CLARITY , I AM REPRODUCING THE FINDING GIVEN BY THE TRIBUNAL VIDE PARA NO. 7 & 8 VIDE ITS ORDER DATED 17.5.2016 IN ASSESSEES OWN CASE ARE AS UNDER:- 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RECORDS. THE OBJECTION LETTER DATED 16.06.2008 WAS CLEARLY MENTIONED IN THE ASSESSMENT ORDER. DESPITE TAKING NOTE OF THE SAME, THE AO FAILED TO TAKE ANY DECISION ON THE SAID OBJECTIONS. THE CIT(A) TOTALLY OVER LOOKED THE FACT THAT OBJECTIONS OF THE ASSESSEE WERE NOT DEALT BY THE AO. IN VIEW OF THIS, IT WILL BE PROPE R, IF THE OBJECTIONS ARE CONSIDERED AND DECIDED BY THE AO IN THE INTEREST OF JUSTICE. BOTH THE SIDES ARE AGREED TO THIS PROPOSITION. IT IS HEREBY 5 DIRECTED TO THE AO TO DECIDE THE OBJECTION DATED 16.6.2008 FILED BY THE ASSESSEE BEFORE TAKING UP THE ASSESSMENT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN FULL OPPORTUNITY TO BE HEARD. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 6. AFTER PERUSING THE AFORESAID DECISION DATED 17.5 .2016 OF THE ITAT, G BENCH, NEW DELHI IN THE CASE OF SA NTOSH AGGARWAL VS. ITO PASSED IN ITA NO. 1741/DEL/2012 (A Y 2005- 06), I AM OF THE CONSIDERED VIEW THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE AFORESAID DECISION, BECAUSE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE EXACTLY S IMILAR AND IDENTICAL TO THAT CASE. THEREFORE, RESPECTFULLY FOL LOWING THE AFORESAID DECISION DATED 17.5.2016 OF THE ITAT, G BENCH, DELHI, AS AFORESAID THE ISSUE INVOLVED IN GROUND N O. 3 IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER IN THE LIGHT OF THE DECISION OF THE ITAT, G BENCH DATED 17.5.2 016 PASSED IN THE CASE OF SANTOSH AGGARWAL VS. ITO (SUPRA). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 6 6 . AFTER GOING THROUGH THE AFORESAID FINDINGS OF THE TRIBUNAL, I AM OF THE VIEW THAT IN THE QUANTUM APPEAL THE ISSUE IN DISPUTE HA S BEEN SET ASIDE AND RESTORED BACK TO THE AO, IN THE AFORESAID MANNER, BY THE ORD ER DATED 03.3.2017 PASSED IN ITA NO. 1740/DEL/2012 (AY 2005-06), THEREFORE, THE PENALTY IN QUESTION DOES NOT STAND IN THE EYES OF LAW. HENCE, THE PEN ALTY IN DISPUTE STANDS DELETED. HOWEVER, THE AO IS AT LIBERTY TO INITIATE THE FRESH PENALTY PROCEEDINGS, IF ANY, AS PER RULES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAN DS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2017. S SS SD DD D/ // /- -- - [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR DATE: 27/11/2017 COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 7