ACIT, New Delhi V. Sh. Ajay Kumar Mukherjee, New Delhi

ITA 3137/DEL/2012

• Counselvise Citation: 313720114 RSA 2012
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 19-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C B SINGH
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI A.N.PAHUJA, ACCOUNTANT MEMBER I.T.A .NO.-3137/DEL/2012 ASSESSMENT YEAR-2007-08 ACIT VS. AJAY KUMAR MUKHERJEE, CIRCLE-48(1), ROOM NO-624, 40A/88, DDA FLATS, MAYUR BHAWAN, CONNAUGHT PLACE, CHITTARANJAN PARK, NEW DELHI-110001 NEW DELHI PAN-ADGPM1335D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI C.B.SINGH, SR. DR RESPONDENT BY: SHRI AJAY KUMAR MUKHERJEE, ASSESSEE HIMSELF APPEAL HEARD ON-27.08.2012 ORDER PRONOUNCED ON-29.08.2012 ORDER PER HARI OM MARATHA, JM THIS APPEAL OF THE REVENUE FOR AY 2007-08 IS DIREC TED AGAINST THE ORDER OF LD. CIT(A), NEW DELHI, DATED 10.04.2010. THIS APPEAL EMANATES FROM THE PENALTY ORDER DATED 31-10-2011 PASSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT). 2. BRIEFLY STATED, THE FACTS LEADING TO THIS APPEAL ARE THAT THE ASSESSEE, AS INDIVIDUAL, FILED HIS RETURN OF INCOME (ROI) FOR AY 2007-08 ON 19.11.2007 I.T.A .NO.-3137/DEL/2012 2 DECLARING TOTAL TAXABLE INCOME OF RS.6,08,935/-. T HE ASSESSMENT U/S 143(3) OF THE ACT WAS MADE AT A TOTAL INCOME OF RS.1,16,96 ,220/-, VIDE ORDER DATED 31-12-2009. THE MAIN SOURCE OF INCOME OF THE ASSES SEE IS FROM SALARY BUT HE ALSO DERIVED INCOME FROM OTHER SOURCES. AS PER INFORMATION AVAILABLE WITH THE DEPARTMENT, THE ASSESSEE HAD MADE CASH DEP OSITS TOTALING TO RS. 1,08,07,500/-, IN HIS BANK ACCOUNTS, DURING THE FINANCIAL YEAR 2006-07. WHEN CONFRONTED ABOUT THESE DEPOSITS, THE ASSESSEE CATEGORICALLY STATED THAT THE DEPOSITED AMOUNTS DID NOT AT ALL BELONG TO HIM. THESE AMOUNTS WERE FOUND TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT, O PENED IN THE NAME OF THE ASSESSEE AS PER INFORMATION GATHERED FROM THE BANK BY RESORTING TO THE PROVISIONS OF SECTION 133(6) OF THE ACT. ACCORDING LY, THIS AMOUNT WAS ADDED IN ASSESSEES HANDS AS HIS UNEXPLAINED DEPOSI TS. 3. SIMILARLY, AN AMOUNT OF RS.62,444/- RELATIVELY B EING AS INTEREST RECEIVED DURING THE RELEVANT PERIOD WAS, CONCOMITAN TLY, ADDED. ANOTHER AMOUNT OF RS.2,79,780/- WHICH WAS CLAIMED IN THE RO I AS EXEMPT (RS. 1,79,780/- U/S 10(13A) AND THE REMAINING RS. 1 ,00,000/- UNDER CHAPTER VI-A) WAS ALSO ADDED AS IT REMAINED UNSUPPORTED BY DOCUMENTARY EVIDENCES. AGGRIEVED, BY THE ABOVE ADDITIONS, THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO VIDE HIS ORDER DATED 31-05-20 11, RENDERED IN APPEAL NO. 387/2009-10, DELETED VARIOUS ADDITIONS. HE HAS CONFIRMED TOTAL ADDITION I.T.A .NO.-3137/DEL/2012 3 OF RS. 9,08,480/- (RS. 6,28,700/- AS UNEXPLAINED IN COME U/S 68 OF THE ACT; RS. 1,79,780/- CLAIMED AS HRA U/S 10(13A) AND AN AM OUNT OF RS. 1,00,000/- CLAIMED AS DEDUCTION UNDER CHAPTER V IA). CONSEQUENT UPON THE FINDING OF LD. CIT(A), A FRESH SHOW CAUSE NOTIC E WAS ISSUED U/S 271(1)(C) TO THE ASSESSEE ON 01.07.2011 WHICH WAS F OLLOWED BY ANOTHER NOTICE DATED 03-10-2011. WHEN NONE-APPEARED, ANOTH ER NOTICE WAS ISSUED ON 11-10-2011 AT BOTH THE ADDRESSES GIVEN BY THE AS SESSEE. ULTIMATELY, A REPLY SENT BY THE ASSESSEE WAS RECEIVED BY ASSESSIN G OFFICER THROUGH SPEED POST, ON 17-10-2011. IT WAS STATED THAT THE ASSESS EE HAD FURTHER FILED SECOND APPEAL BEFORE ITAT SO THE PENALTY PROCEEDINGS SHOUL D BE DROPPED. BUT THE ASSESSING OFFICER IMPOSED A PENALTY OF RS. 34,60,74 0/- U/S 271(1)(C) AT THE MINIMUM RATE OF 100% OF THE TAX SOUGHT TO BE EVADED WHICH WAS CALCULATED AS UNDER:- TAX INCLUDING SURCHARGE AND EDUCATION CESS ON INCOME U/S 250/143(3) (RS. 1,08,50,184) RS. 35,96,071/- LESS:TAX INCLUDING SURCHARGE AND EDUCATION CESS ON RETURNED INCOME OF RS. 6,08,935/- RS. 1,35,334/- TOTAL EVADED TAX RS. 34,60,737/- (OR SAY 34,60,740/-) MINIMUM PENALTY @ 100% OF TAX SOUGHT TO BE EVADED RS. 34,60,740/- MAXIMUM PENALTY @300% OF TAX SOUGHT TO BE EVADED R S. 1,03,82,220/- I.T.A .NO.-3137/DEL/2012 4 4. THE ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A) A GAINST THIS PENALTY ORDER WHO AFTER CONSIDERING THE FACT THAT THE TRIBU NAL AS WELL AS SETTLEMENT COMMISSION HAVE SETTLED THE ENTIRE ADDITION, DELETE D THE ENTIRE PENALTY. NOW, THE REVENUE HAS PREFERRED THIS APPEAL. WE HAV E HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED IN ENTIRE RE CORD. THE ASSESSEE HAS PRODUCED COPIES OF ORDERS PASSED BY THE TRIBUNAL DA TED 13.01.2011 IN INCOME TAX ACT, 1961 NO. 3359/DEL/2011 AND THAT OF SETTLEMENT COMMISSIONS ORDER DATED 21-09-2011 PASSED U/S 245D (4) OF THE ACT. THE ASSESSEE HAS FILED A COPY OF ASSET STATEMENT FURNIS HED BEFORE THE SETTLEMENT COMMISSIONS PRINCIPAL BENCH, NEW DELHI. 5. WE HAVE GONE THROUGH THE TRIBUNALS ORDER VIDE W HICH THE MATTER HAS BEEN RESTORED TO THE FILE OF LD. CIT(A). HENCE, TH E GENESIS OF ISSUE OF SHOW CAUSE NOTICE ON THE BASIS OF WHICH THIS IMPUGNED PE NALTY WAS LEVIED DOES NO LONGER SURVIVE AND HENCE THE PENALTY LEVIED ALSO CA NNOT SURVIVE. 6. WE HAVE ALSO PERUSED THE SETTLEMENT COMMISSIONS ORDER AND IT IS REVEALED THAT THE ASSESSEE HAD PAID ALL DUE TAXES A S PER SETTLEMENT MADE FOR VARIOUS AYS NAMELY 2006-07, 2008-09, 2009-10 AND 20 10-11. MOREOVER, WE HAVE NOT FOUND FROM THE PENALTY ORDER AS ASSESSI NG OFFICER ON WHICH COUNT WHETHER ON A/C OF FURNISHING OF INCORRECT PAR TICULARS OF INCOME OR ON A/C OF CONCEALMENT OF HIS TAXABLE INCOME, THE PENAL TY PROCEEDINGS WAS I.T.A .NO.-3137/DEL/2012 5 INITIATED. THE ADDITIONS ARE MAINLY BASED ON CLAIM S MADE AS PER LAW WHICH REMAINED UN-SUBSTANTIATED AND WERE NOT FOUND TO BE CORRECTLY MADE. THEREFORE, IN THE TOTALITY OF THE FACTS AND THE CIR CUMSTANCES OF THE CASE, WE DO NOT FIND IT A FIT CASE FOR IMPOSITION OF PENALTY FOR EITHER OR BOTH DEFAULTS MENTIONED IN SECTION 271(1)(C) OF THE ACT. 7. ACCORDINGLY, WE ARE ALSO OF THE OPINION THAT PEN ALTY IMPOSED BY ASSESSING OFFICER HAS BEEN CORRECTLY DELETED. WE C ONFIRM THE IMPUGNED ORDER. 8. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE 29 TH DAY OF AUGUST, 2012. SD/- SD/- (A.N.PAHUJA) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/08/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI I.T.A .NO.-3137/DEL/2012 6