Virender Kumar Gupta, Gurgaon V. DCIT, New Delhi

ITA 3140/DEL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5370 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Opportunity of being heard
• Section: 80C; 153A; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 3 14 0 /DEL/201 8 [ASSESSMENT YEAR: 2 0 08 - 09 ] SHRI VIRENDER KUMAR GUPTA VS. THE D.C. I.T. HOUSE NO. 92, SECTOR 5 NEW DELHI GURGAON PAN: ABJPG 4332 M [APPELLANT] [RESPONDENT] DATE OF HEARING : 2 7 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 08 . 1 0.2018 ASSESSEE BY : SHRI GAUTAM JAIN , ADVOCATE REVENUE BY : S HRI SURENDRA PAL , SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: T HIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] XXVI , NEW DELHI DATED 15 .0 3 .201 8 PERTAINING TO ASSESSMENT YEAR 2008 - 09 . 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 46,350/ - LEVIED U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' ] . 3. FACTS ON RECORD SHOW THAT IN THE ASSESSMENT ORDER FRAMED U/S 144 R.W.S 153A OF THE ACT, THE FOLLOWING ADDITIONS WERE MADE: UNEXPLAINED CASH FOUND RS.1,29,500/ - UNEXPLAINED EXPENDITURE RS.50,000/ - UNEXPLAINED CASH FOUND RS.30,000/ - EXCESS DEDUCTION U/S 80C RS.14,290/ - 4. THE FATE OF THESE ADDITIONS , AFTER THE ORDER OF THE FIRST APPELLATE AUTHORITY , READ AS UNDER: NATURE OF ADDITION ADDITION MADE BY THE THEN AO ADDITION DELETED BY CIT(A) ADDITION SUSTAINED BY CIT(A) UNEXPLAINED CASH FOUND 1,29,500 1,29,500 NIL UNEXPLAINED EXPENDITURE 50,000 CONFIRMED 50,000 UNEXPLAINED CASH FOUND 30,000 30,000 NIL EXCESS DEDUCTION U/S 80C 14,290 14,290 NIL TOTAL 2,23,790 1,73,790 50,000 3 5. PENALTY WAS LEVIED BY THE ASSESSING OFFICER WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE. THE ASSESSING OFFICER HAS, SUO MOTO, DECIDED THAT THE ASSESSEE HAS CONCEALED ITS INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME WITHO UT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE. 6. IN MY CONSIDERED OPINION, ONCE THE ADDITIONS HAVE ATTAINED FINALITY BY THE ORDER OF THE APPELLATE AUTHORITY, FOR THE BALANCE OF THE ADDITIONS, IF ANY, THE ASSESSING OFFICER MUST GIVE OPP ORTUNITY TO THE ASSESSEE TO EXPLAIN WHETHER THERE IS ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE CASE IN HAND, I FIND THAT THE ASSESSING OFFICER HAS NOT ALLOWED ANY OPPORTUNITY TO THE ASSESSEE. I, THEREFORE, REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AFRESH AFTER AFFORDING REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 3140 /DEL/201 8 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08 . 10 .2018. S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 08 T H OCTOBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER