Ashwani Talwar, New Delhi V. JCIT, Meerut

ITA 2980/DEL/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8292 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NOS. 2980 & 2981/DEL/2016 A.YRS. : 2005-06 & 2006-07 ASHWANI TALWAR, C/O DEEPAK KAPPOR, ADVOCATE, 59, NEHRU APARTMETNS, OUTER RING ROAD, KALKAJI, NEW DELHI 110 019 (PAN:- AAAPT0920E) VS. JCIT, CENTRAL CIRCLE KANPUR, UP (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MS. RASHMITA JHA, SR. DR. DATE OF HEARING : 26.09.2018 DATE OF ORDER : 03-10-2018 ORDER PER BENCH THESE APPEALS FILED BY THE ASSESSEE CHALLENGING TH E SEPARATE ORDERS BOTH DATED 29.3.2016 IN APPEAL NO. CIT(A)- IV/464/JCIT-CC-MRT/11-12/381 & 385 FOR ASSESSMENT YEARS 2005-06 & 2006-07 RESPECTIVELY PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, KANPUR (I N SHORT LD. CIT(A)). 2 2. THE GROUNDS RAISED IN ASSESSMENT YEAR 2005-06 R EAD AS UNDER- THAT ON FACTS AND IN LAW PENALTY OF RS. 795,643/- U/S. 271(1) HAS BEEN WRONGLY IMPOSED. APPELLANT HAS FURNISHED FULL FACTS RELATING TO THE LONG TERM CAPI TAL GAINS AND HAS ALSO FILED THE SUPPORTING DOCUMENTS I N RESPECT THEREOF. THE AO WITHOUT PROVIDING THE MATE RIAL RELIED UPON BY THE AO AND WITHOUT AFFORDING REASONA BLE OPPORTUNITY OF BEING HEARD TREATED THE LONG TERM CA PITAL GAINS SHOWN BY THE ASSESSEE AS THE INCOME FROM OTHE R SOURCES. THEREFORE, ON FACTS AND IN LAW AND ON GRO UNDS TAKEN ON BASIS ADOPTED THE PENALTY OF RS. 795,643/- DESERVES TO BE DELETED IN FULL. 3. SIMILAR GROUND WAS RAISED IN ASSESSMENT YEAR 200 6-07 ALSO. SINCE THE ISSUE INVOLVED IN THESE APPEALS ARE COMMON AND THEREFORE, THE APPEAL WERE HEARD TOGETHER AND D ISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 4. BRIEF FACTS OF THE CASE ARE THAT THE PURSUANT TO THE SEARCH AND SEIZURE OPERATION THAT WERE CARRIED ON 15.2.2018. ASSESSMENT U/S. 153A/143(3) OF THE ACT WAS COMPLETED FOR BOTH THE ASSESSMENT YEARS AND NOTICE U/S. 271(1) OF THE ACT WAS ISSUED ON THE GROUND FURNISH ING OF INACCURATE PARTICULARS OF INCOME OF THE ASSESSEE. LD. FIRST APPELLATE AUTHORITY CONFIRMED THE PENALTY AND THERE FORE, THE ASSESSEE IS BEFORE US IN THESE TWO APPEALS. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST. IN SPITE OF THE SAME, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTATIV E APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR DID FI LE 3 ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THA T NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGA IN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDIN G THE PRESENT APPEAL EX PARTE QUA ASSESSEE, AFTER HEARING TH E LD. DR AND PERUSING THE RECORDS AVAILABLE. 6. LD. DR STRONGLY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. AT THE OUTSET, IT HAS COME TO OUR NOTICE THAT QU ANTUM APPEALS IN RESPECT OF BOTH THE ASSESSMENT YEARS I N ITA NO. 1390 & 3148/DEL/2011 WERE DISPOSED OF BY A COMMON O RDER DATED 25.4.2012 BY THE COORDINATE BENCH OF THIS T RIBUNAL SETTING ASIDE THE ORDERS OF THE FIRST APPELLATE AU THORITY REMANDING THE MATTER TO HIM FOR FRESH DISPOSAL. IT IS FURTHER OBSERVED THAT THAT THE FIRST APPELLATE AUTHORITY, P URSUANT TO THE REMAND ORDER, DISPOSED OF THEM BY WAY OF ORDER DATED 31.3.2017 AGAINST WHICH THE ASSESSEE PREFERRED THE ITA NOS. 3154-55/DEL/2017 ON 18.5.2017 AND SUCH APPEALS ARE PENDING DISPOSAL. 8. IN THESE CIRCUMSTANCES, THE QUESTION THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE PENALTY LEVIED VIDE OR DER DATED 22.3.2012 WOULD SURVIVE, ESPECIALLY IN VIEW OF TH E FACT THAT THE ASSESSMENT GIVING RISE TO SUCH PENALTY ORDER WA S SUBJECTED TO THE SCRUTINY OF THE LD. FIRST APPELLAT E AUTHORITY FOR THE SECOND TIME, PURSUANT TO THE REMAND ORDER P ASSED BY THIS TRIBUNAL ON 25.4.2012. IN VIEW OF THE FACT T HAT THE FIRST 4 APPELLATE AUTHORITY MODIFIED THE ASSESSABLE INCOME AND THE ADDITIONS ORIGINALLY DONE BY THE AO IN THE ASSESSME NT ORDER DATED 29.12.2009, AND PENALTY HAS DEFINITE RELATION SHIP WITH THE ADDITIONS, AND IN VIEW OF THE FACT THAT THE ORD ER OF THE FIRST APPELLATE AUTHORITY IN THE QUANTUM APPEALS WA S SET ASIDE BY THIS TRIBUNAL VIDE ORDER DATED 25.4.2012, THESE TWO APPEALS DO NOT SURVIVE, AND IT IS FOR THE REVENUE T O CONSIDER THE PENALTY PROCEEDINGS FRESH WITH REFERENCE TO THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY PASSED ON 31.3.20 17, IF THE LAW OF LIMITATION PERMITS. SUBJECT TO THIS OBSERVAT ION, WE FIND NO ADJUDICATION IS NECESSARY IN THESE TWO APPEALS I N VIEW OF THE CHANGE IN THE FACTS AND ACCORDINGLY, THE PENALT Y ORDER DATED 22.3.2012 IS HEREBY QUASHED IN RESPECT OF BOT H THE ASSESSMENT YEARS. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/10/2018. SD/- SD/- [G.D. AGRAWAL] [K.NARASIMHA CHARY] PRESIDENT JUDICIAL MEMBER DATE 03/10/2018 SRBHATNAGAR 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES