M/s Dimension Capbuild P.Ltd., New Delhi V. ITO, New Delhi

ITA 332/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7336 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: MANOJ K GUPTA
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.332/DEL./2017 (ASSESSMENT YEAR : 2003-04) M/S. DIMENSION CAPBUILD P. LTD., VS. ITO, WARD 7 ( 3), B 65/3, NARAINA INDUSTRIAL AREA, NEW DELHI. PHASE II, NEW DELHI 110 028. (PAN : AAACD4046J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANOJ K. GUPTA, CA REVENUE BY : MS. ASHIMA NEB, SENIOR DR DATE OF HEARING : 18.07.2019 DATE OF ORDER : 25.07.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, M/S. DIMENSION CAPBUILD P. LTD. (HEREIN AFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 01.11.2016 PASSE D BY THE COMMISSIONER OF INCOME - TAX (APPEALS)-3, NEW DELH I AFFIRMING THE PENALTY ORDER DATED 30.03.2015 PASSED U/S 271(1 )(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEAR 2003-04 ON THE GROUNDS INTER ALIA THAT :- ITA NO.332/DEL./2017 2 . 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : ON THE BASIS OF ASSESSMENT FRAM ED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) MAKING ADDITION OF RS.35,50,000/- ON ACCOUNT OF INCOME FRO M UNDISCLOSED SOURCES, ASSESSING OFFICER (AO) INITIATED THE PENAL TY PROCEEDINGS BY WAY OF ISSUING OF NOTICE UNDER SECTION 271(1)(C) READ WITH SECTION 274 OF THE ACT. QUANTUM ADDITION HAS BEEN CONFIRMED BY THE LD. CIT (A). DECLINING THE CONTENTIONS RAISED B Y THE ASSESSEE, AO PROCEEDED TO LEVY THE PENALTY OF RS.15,08,968/- @ 100% ON THE TOTAL CONCEALED INCOME OF RS.41,06,037/- ON THE GROUND OF FURNISHING INACCURATE PARTICULARS OF INCOME TO EVAD E TAX. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE PENALTY BY DISMIS SING THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, LD. AR FOR THE ASSESSEE BROU GHT TO THE NOTICE OF THE BENCH THAT ASSESSMENT ORDER DATED 27. 12.2010 FRAMED ITA NO.332/DEL./2017 3 UNDER SECTION 143(3)/147 OF THE ACT ON THE BASIS OF WHICH PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) WERE INITIATED, HAS SINCE BEEN SET ASIDE BY THE COORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 25.10.2016 PASSED IN ITA NO.1900/DEL/2014 . THIS ACTUAL POSITION HAS NOT BEEN CONTROVERTED BY THE LD. DR FOR THE REV ENUE. FOR READY PERUSAL, OPERATIVE PART OF THE AFORESAID ORDE R PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL IS EXTRACTED AS UN DER :- 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE ASSESSEE COULD NOT PRODUCE THE BOO KS OF ACCOUNTS BEFORE THE LD. ASSESSING OFFICER AND THEREFORE THE DISALLOWANCE HAS BEEN MADE BY THE LD. ASSESSING OFFICER ESTIMATING 20% OF THE ALL THE EXPENDITURE OF THE ASSESSEE INCLUDING THE OPENING S TOCK AS DISALLOWABLE. THE LD. 1ST APPELLATE AUTHORITY HA S REDUCED THE ABOVE AMOUNT BY THE AMOUNT OF OPENING STOCK, BUT CONFIRMED THE BALANCE DISALLOWANCE OF EXPENDITURE. SUCH DISALLOWANCES HAS RESULTED BECAUS E THE ASSESSEE COULD NOT PRODUCE THE BOOKS OF ACCOUNT S BEFORE THE LD. ASSESSING OFFICER DUE TO THE DEATH O F ONE OF THE KEY DIRECTORS. THEREFORE, ASSESSEE IS GRANTE D ONE MORE OPPORTUNITY TO PRODUCE THE BOOKS OF ACCOUNTS O F THE ASSESSEE BEFORE THE LD. ASSESSING OFFICER FOR VERIFICATION OF THE ABOVE EXPENDITURE AS ESTIMATED DISALLOWANCE CANNOT BE UPHELD, WHEN THE ASSESSEE IS READY TO PRODUCE THE BOOKS OF ACCOUNTS. IN THE RESU LT GROUND NO.8 OF THE APPEAL OF THE ASSESSEE IS SET AS IDE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DI RECTION TO THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS AL ONG WITH ALL SUPPORTING VOUCHERS AND BILLS WITHIN THREE MONTHS OF THIS ORDER TO SATISFY THE ASSESSING OFFIC ER ABOUT THE GENUINENESS OF THE CLAIM OF EXPENDITURE O F THE ASSESSEE. IN THE RESULT GROUND NO.8 OF THE APP EAL OF THE ASSESSEE IS ALLOWED ACCORDINGLY. ITA NO.332/DEL./2017 4 6. IN VIEW OF THE FACT THAT SINCE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY HAS BEEN LEVIED BY THE AO AND CONFIRM ED BY THE LD. CIT (A) IS NO MORE IN EXISTENCE HAVING BEEN SET ASI DE TO THE AO TO DECIDE AFRESH, PENALTY LEVIED IS NOT SUSTAINABLE. C ONSEQUENTLY, THIS ISSUE IS ALSO SET ASIDE TO THE AO TO DECIDE AFRESH IN ACCORDANCE WITH LAW ONLY AFTER FRAMING THE ASSESSMENT AFTER PROVIDI NG ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQU ENTLY, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PU RPOSES ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF JULY, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 25 TH DAY OF JULY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-3, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.