ACIT, Central Circle-26, New Delhi V. Anurag Dalmia, New Delhi

ITA 3005/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9105 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Assessee Lawyers: V K BINDAL CA MS RINKI SHARMA
• Keywords: Set aside
• Section: 271(1)(c); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3005/DEL./2018 (ASSESSMENT YEAR : 2006-07) ITA NO.3006/DEL./2018 (ASSESSMENT YEAR : 2007-08) ACIT, CENTRAL CIRCLE 26, VS. SHRI ANURAG DALMIA, NEW DELHI. 2 ND FLOOR, INDRAPRAKASH BUILDING, 21, BARAKHAMBA ROAD, NEW DELHI. (PAN : AADPD9439P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. BINDAL, CA MS. RINKI SHARMA, CA REVENUE BY : SHRI SATPAL GULATI, CIT DR DATE OF HEARING : 04.08.2021 DATE OF ORDER : 04.08.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ACIT, CENTRAL CIRCLE 26, NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDERS BOTH DATED 20.02.2018 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-29, NEW DELHI DISMISSING THE PENALTY ORDERS BOTH DATED 30.06.2015 PASSED UND ER SECTION ITA NO.3005/DEL./2018 ITA NO.3006/DEL./2018 2 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT T HE ACT) QUA THE ASSESSMENT YEARS 2006-07 & 2007-08 ON THE IDENTICAL GROUNDS, EXCEPT THE DIFFERENCE OF AMOUNT, INTER ALIA THAT:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE PENALTY (RS.9,41,33,837/- & RS.4,90,58,258/- FOR AY S 2006-07 & 2007-08) ON THE CONCEALMENT OF INCOME (RS.27,96,60, 833/- & RS.14,17,50,411/- FOR AYS 2006-07 & 2007-08) (RS.27,91,72,017/- & RS.14,17,50,411/- FOR AYS 200 6-07 & 2007-08 BEING THE INCOME FROM UNDISCLOSED FOREIGN B ANK ACCOUNT) AND RS.4,88,816/- & RS.25,81,034/- FOR AYS 2006-07 & 2007-08 BEING THE INTEREST INCOME EARNED FORM UNDIS CLOSED FOREIGN BANK ACCOUNT) ON ACCOUNT OF UNDISCLOSED INV ESTMENT IN FOREIGN BANK ACCOUNT MADE U/S 69 OF THE INCOME TAX ACT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE PENALTY DISREGARDING THE FACT THAT THE ASSESSEE HAS DELIBERATELY CONCEALED INTEREST INCOME OF RS.4,88,816/- IN HSBC GENEVA. 3. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDIC E TO EACH OTHER. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMENTS COMPLETED UNDER SECTION 153A/143(3) OF THE ACT, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT FOR CONCEALING THE PARTICULARS OF INCOME. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO PROCEEDE D TO LEVY THE PENALTY ITA NO.3005/DEL./2018 ITA NO.3006/DEL./2018 3 OF RS.9,41,33,837/- & RS.4,90,58,258/- FOR AYS 2006-07 & 2007-08 RESPECTIVELY @ 100% OF THE TAX SOUGHT TO BE EVADED. 3. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS DELETED THE PENALTIES BY ALLOWING THE A PPEALS ON THE GROUND THAT THE TRIBUNAL HAS DELETED THE QUANTUM ADDITIONS . FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT ADDITIONS MADE IN THE QUANTUM PROCEED INGS HAVE SINCE BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.5395 & 5396/DEL/2017 VIDE ORDER DATED 15.02.2018 AND AS SUCH, PENALTY LEVIED IS NOT SUSTAINABLE AND BROUGHT ON RECORD THE COPY O F THE ORDER OF THE TRIBUNAL DATED 15.02.2018 (SUPRA). 6. UNDISPUTEDLY, COORDINATE BENCH OF THE TRIBUNAL V IDE ORDER DATED 15.02.2018 (SUPRA) DELETED THE ADDITIONS. IN THESE CIRCUMSTA NCES, THE PENALTY LEVIED BY THE AO IS NOT SUSTAINABLE IN VIEW OF THE LAW LAID DOWN BY THE HONBLE APEX COURT IN CASE CITED AS K.C. BUILDERS & ANR VS. ACIT 265 ITR 562 (SC) BECAUSE WHEN THE ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED ITA NO.3005/DEL./2018 ITA NO.3006/DEL./2018 4 HAVE BEEN DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT AND IN SUCH CASE, NO PENALTY CAN SU RVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. SO, IN VIEW OF THE MATTER, FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDERS PAS SED BY THE LD. CIT (A), THE APPEALS FILED BY THE REVENUE ARE HEREBY DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON THIS 4 TH DAY OF AUGUST, 2021. SD/- SD/- (O.P. KANT) (KULDIP SIN GH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 4 TH DAY OF AUGUST, 2021/ TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-29, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.