ITO, New Delhi V. Smt. Mukta Kapoor, New Delhi

ITA 3064/DEL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5863 (ITAT-DELHI)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Section: 69C; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3064/DEL/2016 (ASSESSMENT YEAR: 2008 - 09 ) ITO, WARD - 70(2), ROOM NO. 307, D - BLOCK, CIVIC CENTRE, NEW DELHI VS. MUKTA KAPOOR, FLAT NO. A - 63, AYUSH VIHAR, SECTOR - 13, DWARKA, NEW DELHI PAN: AMXPK0782E (APPELLANT) (RESPONDENT) REVENUE BY : SHRI KAUSHLENDRA TIWARI, SR. DR ASSESSEE BY: NONE DATE OF HEARING 13/03/ 2018 DATE OF PRONOUNCEMENT 3 0 / 05 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT ( A) - XXX, NEW DELHI DATED 21.05.2013 FOR THE ASSESSMENT YEAR 2008 - 09 WHEREIN PENALTY LEVIED UNDER SECTION 271 (1) (C) OF RS. 1 062534/ WAS DELETED ON THE ACCOUNT OF THE FACT THAT ADDITION OF RS. 31.11 LAKHS IS REDUCED TO ONLY RS. 1.55 LACS BY HIM IN QUANTUM APPEAL . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN DELETING THE PENALTY U/S 271(1)(C) AMOUNTING TO RS. 1062534/ - WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE DID NOT AVAIL OPPORTUNITIES TO SUBMIT HER VERSIONS BOTH THE TIME OF A SSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL. ASSESSMENT UNDER SECTION 144 OF THE ACT ON 20/12/2010 AT RS. 3 4, 51, 540/ . THE ASSESSEE FILED HER RETURN OF INCOME ONLY AT RS. 3 39905/ ON 23/7/2008. IN THE ASSESSMENT PROCEEDINGS THERE WAS AN ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS UNDER SECTION 69C OF THE ACT AMOUNTING TO RS. 31, 11, 637. THE ASSESSEE PREFERRED AN APPEAL BEFORE PAGE | 2 THE LD. CIT (A) AGAINST THE QUANTUM ADDITION. THE LD. CIT APPEAL ESTIMATED THE PROFIT AT THE RATE OF 5% OF THE AMOUNT OF CASH DEPOSIT IN BANK ACCOUNT. THEREFORE HE CONFIRMED THE ADDITION OF RS. 1, 55, 581/ 4. AS ACCORDING TO THE AO, THE ASSESSEE HAS CONCEALED THE PARTICULARS OF THE INCOME PENALTY PROCEEDINGS UNDER SECTION 271 (1) WERE INITIATED. THE ASSESSEE DID NOT SUBMIT ANY REPLY FOR THE ASSESSING OFFICER AND THEREFORE THE LD. ASSESSING OFFICER LEVIED A PENALTY OF RUPEES 10, 62, 534/ . THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT (A. HE DELETED THE PENALTY HOLDING THAT AS THE SUBSTANTIAL RELIEF IN THE APPEAL IS BEEN GRANTED TO THE ASSESSEE AND NOTICE WAS OF THE APPELLANT AT THE TIME OF SCRUTINY OF THE CASE THE PENALTY ORDER AL SO DO NOT STAND THE TEST OF THE APPEAL. 5. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. ASSESSING OFFICER AND SUBMITTED THAT WHEN THE CASE BY THE ASSESSEE IN THE BANK ACCOUNT DID IS NO REASON THAT THE LD. CIT (A) SHOULD HAVE E STIMATED 5% THEREON. HE SUBMITTED THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME HENCE THE PENALTY IS RIGHTLY LEVIED. HE FURTHER SUBMITTED THAT THE APPELLAT E AUTHORITY HAS TREATED THE PENALTY WITHOUT ANY PURPOSE. 6. DESPITE NOTICE IS SEEN APPEARED ON B EHALF OF THE ASSESSEE FOR THE ISSUES DECIDED IN ABSENCE OF THE ASSESSEE ON MERITS OF THE CASE AS PER FACTS AVAILABLE ON RECORD. 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITY ON THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE. IN THE PRE SENT CASE, THE ADDITION WAS MADE WITH RESPECT TO THE DEPOSIT OF RS. 31.11 LAKHS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ABOVE AMOUNT WAS ADDED UNDER SECTION 69C OF THE INCOME TAX ACT BY THE LD. ASSESSING OFFICER. ON APPEAL BEFORE THE LD. FIRST APPELLATE A UTHORITY THE ADDITION WAS RESTRICTED ON ESTIMATED BASIS AT THE RATE OF 5% OF THE AMOUNT OF CASH DEPOSIT. THEREFORE, THE ADDITION TO THE EXTENT OF ONLY RS. 1.55 LACS WAS SUSTAINED . T HE LD. ASSESSING OFFICER LEVIED THE PENALTY ON THE TOTAL ADDITION. HOWEVER, THE ADDITION WAS SUBSTANTIALLY REDUCED BY THE LD. CIT (A) FROM 31.11 LAKHS TO 1.55 LACS. THEREFORE NOW THE CONTEST IS WHETHER THE PENALTY ON RS. 1.55 LKAHS IS LEVIABLE OR NOT ON THE FACTS OF THE CASE. IN THE PAGE | 3 PRESENT CASE, THE APPELLANT IS A SALARIED EMPLO YEE. SHE GOT MARRIED ON 1/10/2000 AND LATER ON DIVORCED ON 03/12/2008. IN HER SAVINGS BANK ACCOUNT WITH ICICI BANK THE SUM OF RS. 31.11 LAKHS WERE DEPOSITED. C HAS STATED THAT SHE HAS NEVER OPERATED THAT ACCOUNT. SHE LATER ON STATED THAT C HAS ENQUIRED AND FOUND THAT THE TRANSACTIONS WERE MADE BY THE BROTHER - IN - LAW OF HER ESTRANGED HUSBAND WHO IS OWNER OF A PROPRIETARY CONCERN. THEREFORE, SHE DENIED HAVING EARNED ANY MONEY. SEE FURTHER STATED THAT MONEY DEPOSITED DOES NOT BELONG TO HER. HOWEVER, THE LD. CIT APPEAL DID NOT ACCEPT THE ABOVE THEORY. HE CONFIRMED THE ADDITION TO THE EXTENT OF RS. 1.55 LACS BY ESTIMATING THE PROFIT AT THE RATE OF 5% OF THE AMOUNT DEPOSITED IN HER BANK ACCOUNT. HOWEVER, ON ALTOGETHER DIFFERENT BUILDINGS THE LD. ASSESSING OFFICER H AS NOT GIVEN A SPECIFIC CHARGE WHILE LEVYING THE PENALTY. IN PARA NO. 4 YEARS STATED THAT FROM THE ABOVE FACTS IT IS CLEARLY ESTABLISH THAT THE ASSESSEE HAS WILLFULLY CONCEALED/FURNISHED INACCURATE PARTICULARS OF INCOME WITH INTENT OF EVADING TAX AND THERE FORE LIABLE FOR PENALTY. FURTHER, MORE IN PARA NO. 7 ALSO HE REPEATED THE SAME TWIN CHARGES. IN VIEW OF THIS, IT IS APPARENT THAT THE LD. ASSESSING OFFICER WAS NOT SURE WHETHER THE ASSESSEE HAS CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF IN COME. EVEN IN CASE OF NOTICE UNDER SECTION 274 OF THE ACT WHERE ONE OF THE TWIN CHARGES ARE NOT STRUCK OFF, THE PENALTIES HAVE BEEN CANCELLED. HOWEVER IN THE PRESENT CASE EVEN IN THE PENALTY ORDER THE ASSESSING OFFICER IS NOT SURE ON WHICH CHARGE THE PENAL TY UNDER SECTION 271 (1) (C) OF THE ACT IS LEVIED. EVEN OTHERWISE, NOW THE ADDITION REMAINS ONLY OF RS. 1.55 LACS. THEREFORE WE DIRECT THE LD. ASSESSING OFFICER TO DELETE THE PENALTY UNDER SECTION 271 (1) (C) OF THE ACT ON THE ADDITION OF RS. 1.55 LACS FOR THE REASON THAT THERE IS NO SPECIFIC FINDING IN THE PENALTY ORDER ABOUT THE OFFENCE COMMITTED BY THE ASSESSEE. IN THE RESULT GROUND NO. 1 OF THE APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 / 05 / 2018 . - S D / - - S D / - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER PAGE | 4 DATED: 3 0 / 05 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI