Sh. Ravinder Dutta, New Delhi V. ACIT, New Delhi

ITA 2982/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7040 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 21-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDER DUBEY
• Keywords: Opportunity of being heard; Additional evidence
• Section: 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO . 2982 /DEL/20 1 4 A.Y : 200 7 - 0 8 SHRI RAVINDER DUTTA 21/73, OLD RAJINDER NAGAR, NEW DELHI (PAN: AAKPD3381R) VS ACIT, CENTRAL CIRCLE - 7 NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. ANKIT GUPTA, ADV. DEPARTMENT BY : SH. UMESH CHANDER DUBEY, SR. DR DATE OF HEARING: 21-09-2016 DATE OF ORDER : 04-10-2016 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : JM : JM: JM : JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPU GNED ORDER DATED 20/2/2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-VI, NEW DELHI FOR THE RELEVANT ASSESSMENT YEAR 2007-08 ON T HE FOLLOWING EFFECTIVE GROUND:- 1. THE NOTICE ISSUED U/S 271 (1 ) (C) AND ORDER IMP OSING PENALTY OF RS. 8,52,811/- UNDER SAID SECTION ARE ILLEGAL, B AD IN LAW, AND WITHOUT JURISDICTION. 2. THE ORDER PASSED ULS 271(L)(C) IS BARRED BY LIMI TATION AND WITHOUT JURISDICTION, HENCE LIABLE TO BE QUASHED. 2 3. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCE OF T HE CASE THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE PENALTY OF RS. 8,52,811/- IMPOSED ULS 271(1)(C). 4. THAT THE PENALTY HAS BEEN LEVIED WITHOUT ANY SPE CIFIC CHARGE HENCE THE SAME IS ILLEGAL, BAD IN LAW & SAME IS LIA BLE TO BE SET ASIDE. 5. THAT THE INFORMATION FILED AND THE MATERIAL AVAI LABLE ON RECORD ARE NOT PROPERLY CONSIDERED AND AS SUCH THE ORDER IMPOSING PENALTY ULS 271 (1) (C) IS ILLEGAL AND BAD IN LAW. 6. THAT THE APPELLANT HAD NEITHER CONCEALED PARTICU LARS OF INCOME NOR HAD FILED ANY INACCURATE PARTICULARS OF INCOME AND THE CIT (A) HAS FAILED TO APPRECIATE THAT THE ADDITION OF RS. 26,94,506/- ON ACCOUNT OF UNDISCLOSED INVESTMENT UN DER SECTION 69 OF THE ACT IS THE AMOUNT RECEIVED BY THE APPELLA NT FROM HIS BROTHER SHRI. RAJESH DATTA, WHO IS A RESIDENT OF UN ITED KINGDOM. 7. THAT THE CIT (A) HAS.TIN VIEW OF FACTS AND CIRCU MSTANCES, ERRED IN NOT CONSIDERING THE ADDITIONAL DOCUMENTS FILED B Y THE APPELLANT TO PROVE THE CREDITWORTHINESS OF HIS BROTHER SHRI RAJE SH DUTTA, WHICH IS THE SOLE REASON FOR THE CIT(A) TO SUSTAIN THE QUANT UM ADDITION HENCE THE PENALTY ULS 271 (1) (C) DO NOT ATTRACT AND THE SAME HAS BEEN WRONGLY UPHELD. 8. THE ADDITION HAS BEEN MADE MERELY ON THE BASIS O F INFORMATION RECEIVED BY THE INVESTIGATION AND THE REJECTION OF EXPLANATION OF THE APPELLANT AND NO MATERIAL HAS BEEN BROUGHT ON RECOR D BY THE AO IN 3 SUPPORT OF SAID ADDITION HENCE NO PENALTY U/S 271 (1)( C) COULD BE LEVIED ON THE BASIS OF SUCH A DISALLOWANCE. 9. PENAL PROCEEDINGS HAVE BEEN INITIATED WITHOUT AN Y SPECIFIC CHARGES HENCE THE SAME ARE LIABLE TO BE SET ASIDE. 1O. THAT IN ANY CASE THE PENALTY IMPOSED IS UNJUST, ARBITRARY AND HIGHLY EXCESSIVE. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT ITAT VIDE ORDER DATED 05.09.2016 PASSED IN ITA NO. 5052/DEL/2 011 (AY 2007-08) IN ASSESSEES OWN CASE SET ASIDE THE ISSUE IN DISPUTE AND RESTORED BACK TO THE FILE OF THE AO TO EXAMINE THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND DECIDE THE SAME AFRESH, AS PER LAW. THE FACTS AND FINDIN GS NARRATED BY THE ITAT F BENCH, NEW DELHI IN ITS ORDER DATED 05.9.2016 PASSE D IN ITA NO. 5052/DEL/2011 (AY 2007-08) IN THE ASSESSEES CASE A RE GIVEN IN PARA 5 AT PAGE NO. 4 TO 5 OF THE ORDER. FOR THE SAKE OF CONVE NIENCE, THE RELEVANT PARA IS REPRODUCED HEREUNDER:- 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RECORDS. IN THE INTEREST OF JUSTICE AND THE CONTENT ION RAISED BY THE ASSESSEES COUNSEL THAT ADDITIONAL EVIDENCE FILED BY THE ASSESSEE I.E. BANK STATEMENT OF RAJESH DUTTA VIDE PAPER BOOK DATED 16.1.2012 AT SERIAL NO. 9 PAGE NO. 15 TO 18 AND BANK ACCOUNT O F SUBSEQUENT YEAR IN WHICH AMOUNT HAS BEEN REFUNDED TO BY SH. RAJEEV DUTTA WHICH IS MENTIONED AT PARA NO. 5 OF THE APPLICATION FILED U/R 29 OF THE ITAT R ULES, 4 1963 ARE VERY ESSENTIAL, HENCE, THE SAME ARE ADMITTED. WE ARE ALSO OF THE VIEW THAT THE ADDITIO NAL EVIDENCES FILED BY THE ASSESSEE REQUIRS THOROUGH EXAMINATION AT THE LEVEL OF THE AO, THEREFORE, IN T HE INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUE S IN DISPUTE TO THE FILE OF THE AO TO EXAMINE THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND DEC IDE THE SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. AFTER GOING THROUGH THE AFORESAID FINDING OF THE TRIBUNAL, I AM OF THE VIEW THAT IN THE QUANTUM PROCEEDINGS THE ISSUE IN DISPUT E HAS BEEN SET ASIDE BY THIS BENCH VIDE ORDER DATED 05.09.2016 FOR FRESH CONSIDE RATION, THEREFORE, THE PENALTY IN QUESTION CANNOT STAND IN THE EYES OF L AW. HENCE, THE PENALTY IN DISPUTE STANDS DELETED. HOWEVER, THE AO IS AT LIBE RTY TO INITIATE THE FRESH PENALTY PROCEEDINGS, AFTER THE COMPLETION OF THE ASSESSMENT . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAN DS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2016. 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: 04/10/2016 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