Sushil Kumar Jain, Delhi V. ITO, New Delhi

ITA 3304/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3760 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 08-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KOUSHLENDRA TEWARI
• Assessee Lawyers: D M SINHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.3304/DEL./2015 ASSESSMENT YEAR 2010-2011 SHRI SUSHIL KUMAR JAIN DELHI. C/O. SHRI DM SINHA, ADVOCATE, 621/9, VISHWAS NAGAR, (18 QUARTER CHOWK), DELHI 110 032. PAN AAIPJ2684H VS. THE INCOME TAX OFFICER WARD-35(1) NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI D.M. SINHA, ADVOCATE FOR REVENUE : SHRI KOUSHLENDRA TEWARI, SR. DR DATE OF HEARING : 31 . 1 0.2017 DATE OF PRONOUNCEMENT : 31 . 1 0.2017 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-19, NEW DELHI, DATED 31 ST DECEMBER, 2014 FOR A.Y. 2010-2011, CHALLENGING THE LEVY OF PENALTY UND ER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. THIS APPEAL WAS EARLIER DISMISSED FOR DEFAULT V IDE ORDER DATED 4 TH JANUARY, 2016. HOWEVER, THE M.A. OF THE ASSESSEE H AS BEEN 2 ITA.NO.3304/DEL./2015 SHRI SUSHIL KUMAR JAIN, DELHI . ALLOWED AND EX-PARTE ORDER WAS RECALLED. THE APPEAL WAS RESTORED FOR DECIDING ON MERITS. 3. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 4. THE A.O. MADE ADDITION OF RS.11,15,504 ON ACCOU NT OF SHORT TERM CAPITAL GAINS AS THE ASSESSEE AGREED FOR THE DIFFERENT ADDITIONS. THE A.O. INITIATED PENALTY PROCEEDINGS U NDER SECTION 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME. THE A.O. ISSUED NOTICE TO THE ASSESSEE DATED 20 TH MARCH, 2013 BEFORE LEVY OF THE PENALTY. THE A.O. HOWEVER, LEVIED THE PENALTY AFTER CONSIDERING REPLY OF THE ASSESSEE AS THE ASSESSEE HAS DELIBERATELY CONCEALED THE PARTICULARS OF HIS INCOME AND HAS FURNISHED INACCURATE PARTICUL ARS OF INCOME. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF ASSES SEE PARTLY ALLOWED THE APPEAL OF ASSESSEE AND REDUCED THE PENALTY AMOU NT. 5. THE LEARNED COUNSEL FOR THE ASSESSEE FILED COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE A.O. BEFORE LEVY OF THE PENALTY IN WHICH THE A.O. HAS MENTIONED HAVE CONCEALED PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION-1, 2, 3, 4 AND 5 . THE LEARNED COUNSEL FOR THE ASSESSEE, 3 ITA.NO.3304/DEL./2015 SHRI SUSHIL KUMAR JAIN, DELHI . THEREFORE, SUBMITTED THAT THE SHOW-CAUSE NOTICE IS BAD IN LAW AND IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CO NCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. HE RELIED UPON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT, BANGALORE VS. M/S. SSAS EMERALD MEADOWS, 73 TAXMAN.COM 241 IN WHICH IN SIMILAR CIRCUMSTANCES , THE TRIBUNAL CANCELLED THE PENALTY AND THE HONBLE HIGH COURT DI SMISSED THE DEPARTMENTAL APPEAL. THE DECISION OF THE HONBLE HI GH COURT HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT BY DISM ISSING THE SLP IN THE MATTER OF CIT VS. M/S. SSAS EMERALD MEADOWS 73 TAXMANN.COM 248. 6. ON THE OTHER HAND, THE LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM O F THE VIEW THAT PENALTY IS NOT LEVIABLE IN THE MATTER. THE A.O . HAS ISSUED SHOW CAUSE NOTICE IN WHICH A.O. HAS MENTIONED BOTH THE L IMBS IN WHICH PENALTY HAVE BEEN INITIATED UNDER SECTION 271(1)(C) OF THE I.T. ACT. THE NOTICE IS BAD IN LAW AS IT DID NOT SPECIFY UNDER WH ICH LIMB OF SECTION 4 ITA.NO.3304/DEL./2015 SHRI SUSHIL KUMAR JAIN, DELHI . 271(1)(C) OF THE ACT, PENALTY PROCEEDINGS UNDER SEC TION 271(1)(C) OF THE ACT HAD BEEN INITIATED I.E., WHETHER FOR CONCEA LMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME. THE ISSUE IS THEREFORE, COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT IN THE CASE OF CIT VS. M/S. SSAS EMERALD MEADOWS (SUPRA). IN VIEW OF THE ABOVE, I SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND CANCEL THE PENALTY. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 31 ST OCTOBER, 2017 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.