Amit Sabharwal, Ghaziabad V. ITO, Ghaziabad

ITA 3380/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6406 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Assessee Lawyers: RAJ KUMAR AGARWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH C NEW DELHI BEFORE : SHRI I.C. SUDHIR , JUDICIAL MEMBER & SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3380/DEL./2015 ASSTT. YEAR : 2009 - 10 AMIT SABHARWAL, VS. INCOME - TAX OFFICER, 19, NAVYUG MARKET, 2 ND FLOOR, WARD 1(1), GHAZIABAD. GHAZIABAD. (PAN - ALYPS 1816K) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJ KUMAR AGARWAL, FCA RESPONDENT BY : SH. AMRIT LAL, SR. DR DATE OF HEARING : 28 .02.2017 DATE OF PRONOUNCEMENT : 20 .03.2017 ORDER PER L.P. SAHU, ACCOUNTANT MEMBER: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), GHAZIABAD DATED 24.02.2015, CHALLENGING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE IT ACT, 1961 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE BRIEF FACTS OF THE CASE ARE THAT AN ADDITION OF RS.21,40,567/ - WAS TO THE INCOME OF ASSESSEE ON ACCOUNT OF THE UN - RECONCILED DIFFERENCE IN THE RECEIPTS SHOWN BY ASSESSEE AND THAT AS PER 26AS GENERATED BY THE ITA NO. 3380/DEL./2015 2 DEPARTMENT. FURTHER ADDITION OF RS.4,00,000/ - WAS BY AO ON ACCOUNT OF EXPENSES DEBITED IN THE PROFIT AND LOSS ACCOUNT FOR WANT OF BILLS AND VOUCHERS. BASED ON THESE ADDITIONS, THE AO IMPOSED PENALTY OF RS.17,31,200/ - REPRESENTING 200 % OF THE TAX SOUGHT TO BE EVADED, WHICH WAS RESTRICTED TO 100% BY THE LD. CIT(A) IN APPEAL VIDE THE IMPUGNED ORDER. AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE THROUGH TH E ENTIRE MATERIAL AVAILABLE ON RECORD. 4. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ABOVE ADDITIONS , ON THE BASIS OF WHICH THE IMPUGNED PENALTY HAS BEEN LEVIED, WERE CHALLENGED BY THE ASSESSEE IN QUANTUM APPEAL BEFORE THE ITAT, AND THE ITAT VIDE ORDER DATED 05.02.2016 (COPY PLACED ON RECORD) WAS PLEASED TO SET ASIDE THE ADDITIONS, REMITTING THEM TO THE FILE OF AO TO DECIDE THE SAME DE NOVO AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THEREFORE , THE PENALTY SO IMPO SED ON THE BASIS OF ABOVE ADDITIONS, DESERVES TO BE QUASHED. THIS SITUATION IS ADMITTED TO THE LD. DR. WE ARE, THEREFORE, OF THE OPINION THAT ONCE THE ADDITIONS , WHICH LED THE AO TO IMPOSE THE IMPUGNED PENALTY, STOOD ITA NO. 3380/DEL./2015 3 SET ASIDE AND RESTORED TO THE AO, THE IMPUGNED PENALTY IS NOT SUSTAINABLE AT THIS JUNCTURE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED. 5. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.03.2017 . SD/ - SD/ - ( I.C. SUDHIR ) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20.03.2017 *AKS/ - COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI