Sh. Pankaj Bajaj, New Delhi V. ACIT, Noida

ITA 3442/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3572 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ATICE AHMAD
• Assessee Lawyers: MANISHA SHARMA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3442/DEL./2016 ASSESSMENT YEAR: 2012-13 SHRI PANKAJ BAJAJ, A - 2, GREATER KAILASH, PART-I, NEW DELHI PAN- AANPB6577C (APPELLANT) VS. ACIT, CENTRAL CIRCLE, NOIDA. (RESPONDENT) APPELLANT BY SH. GAURAV JAIN, ADVOCATE & MS. MANISHA SHARMA, ADVOCATE RESPONDENT BY SH. ATICE AHMAD, SR. DR ORDER PER BHAVNESH SAINI, J.M. : THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAI NST THE ORDER OF LD. CIT(A)-I, NOIDA DATED 31.03.2016 FOR THE ASSESSMENT YEAR 2012-13, CHALLENGING THE LEVY OF PENALTY IMPOSED U/S. 271(1) (C) OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT A SEARCH WAS CONDUCTED ON 28.03.2012 U/S. 132(4) OF THE IT ACT. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS ASKED TO EXPLAIN THE GOLD KEPT IN LOCK ER NO. 329/2 WITH HDFC BANK, SAFDARJANG DEVELOPMENT AREA, NEW DELHI BECAUS E THE ASSESSEE ADMITTED BEFORE THE CBI IN STATEMENT RECORDED ON 22.09.2012 U/S. 161 CRPC THAT THE DATE OF HEARING 29.01.2018 DATE OF PRONOUNCEMENT 01 .02.2018 ITA NO. 3442/DEL./2016 2 ASSESSEE HAD REMOVED CERTAIN GOLD ITEMS FROM THIS L OCKER DURING THE COURSE OF SEARCH ON 21.05.2012. THE ASSESSEE FILED REPLY AND ACCEPTED THAT HE HAD REMOVED GOLD ITEMS WEIGHING 150 GMS. HE FURTHER CON TENDED THAT THE REMOVED ITEMS ARE PART OF THE DISCLOSED JEWELLERY S HOWN UNDER THE WEALTH TAX ACT. HE CONTENDED THAT THE TOTAL WEIGHT OF JEWE LLERY FOUND DURING THE COURSE OF SEARCH AT RESIDENCE AND LOCKER WAS WEIGHI NG 11,967.49 GMS. WHEREAS HE AND HIS WIFE, SMT. BANDANA KOHLI OWN JEW ELLERY HAVING GROSS WEIGHT OF 12,225.26 GMS AND AS SUCH THIS JEWELLERY IS PART OF THE DECLARED JEWELLERY. THE DETAILS OF THE JEWELLERY DECLARED UN DER THE WEALTH-TAX ACT WERE FILED AND PLACED ON RECORD. THE ASSESSING OFFICER F URTHER NOTED THAT SINCE THE ASSESSEE ACCEPTED THAT THE JEWELLERY OF GOLD WEIGHI NG 150 GMS WAS REMOVED, THEREFORE, THE ADDITION OF RS.4,27,500/- WAS MADE T O THE INCOME OF THE ASSESSEE. THE ASSESSING OFFICER ON THE BASIS OF SAM E ADDITION LEVIED PENALTY U/S. 271(1)(C) OF THE IT ACT, WHICH IS CONFIRMED BY THE LD. CIT(A). 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND REFERRED TO PB-5, WHICH I S DETAILS OF GOLD JEWELLERY HELD AND DECLARED IN THE WEALTH-TAX RETURN SUPPORTE D BY REPLY FILED BEFORE THE LD. CIT(A) DATED 23.10.2015 AND PB-52, WHICH IS REPLY FILED BEFORE THE ASSESSING OFFICER DATED 25.09.2014 ON THE PENALTY M ATTER. THE LD. COUNSEL FOR ITA NO. 3442/DEL./2016 3 THE ASSESSEE CONTENDED THAT SINCE THE ASSESSEE AND HIS WIFE DECLARED MORE GOLD JEWELLERY IN THE WEALTH-TAX RETURN AS AGAINST THE JEWELLERY FOUND DURING THE COURSE OF SEARCH, THEREFORE, EVEN IF THE ADDITI ON WAS NOT CHALLENGED IN THE QUANTUM PROCEEDINGS, IT IS NOT A FIT CASE TO IMPOSE PENALTY. 4. THE LD. DR, HOWEVER, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER. IT IS AN ADMITTED FACT THAT THE ASSESSEE DID NOT CHALLENGE T HE ADDITION IN QUANTUM PROCEEDINGS. THEREFORE, THE ADDITION OF RS.4,27,500 /- BECAME FINAL IN QUANTUM PROCEEDINGS. THE ASSESSING OFFICER ON THIS ADDITION LEVIED PENALTY U/S. 271(1)(C) OF THE IT ACT. THE ASSESSING OFFICER IN T HE ASSESSMENT ORDER REFERRED TO THE STATEMENT RECORDED OF THE ASSESSEE ON 22.09. 2012 U/S. 161 CRPC BEFORE THE CBI, IN WHICH HE HAS ADMITTED TO HAVE REMOVED G OLD ITEMS FROM THE LOCKER IN QUESTION DURING THE COURSE OF SEARCH ON 21.05.20 12. THE STATEMENTS U/S. 161 CRPC ARE RECORDED OF THE WITNESSES, BUT HOW IT IS CONNECTED WITH THE PENALTY MATTER IN THE CASE OF THE ASSESSEE IS NOT E XPLAINED. IT IS WELL SETTLED LAW THAT QUANTUM AND PENALTY PROCEEDINGS ARE INDEPE NDENT AND DISTINCT PROCEEDINGS AND DURING THE COURSE OF PENALTY PROCEE DINGS, THE ASSESSEE CAN ITA NO. 3442/DEL./2016 4 EXPLAIN THAT IT IS NOT A FIT CASE FOR PENALTY EVEN IF THE ADDITION IS NOT CHALLENGED IN QUANTUM PROCEEDINGS. ONCE THE STATEMENTS WERE RE CORDED U/S. 161 CRPC OF THE WITNESSES, THEREFORE, HOW IT IS RELEVANT TO LEV Y PENALTY SHOULD HAVE BEEN EXAMINED BY THE ASSESSING OFFICER. FURTHER, SINCE B EGINNING, THE ASSESSEE HAS EXPLAINED THAT HE AND HIS WIFE HAVE DECLARED MORE J EWELLERY IN WEALTH-TAX RETURN. THIS EXPLANATION SHOULD ALSO BE EXAMINED BY THE AUTHORITIES BELOW GIVING THEIR FINDINGS THEREON IN THE PENALTY ORDERS . FURTHER, THE ASSESSEE REFERRED TO THE REPLY DATED 25.09.2014 (PB-52) FILE D BEFORE THE ASSESSING OFFICER, BUT THE ASSESSING OFFICER HAS REFERRED TO ANOTHER REPLY DATED 23.09.2014 IN THE PENALTY ORDER. THE ASSESSEE FILED ANOTHER REPLY BEFORE THE LD. CIT(A) DATED 23.10.2015 (PB-42), BUT THE REPLY OF THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE LD. CIT(A) IN THE APPELLATE ORDER. IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER. WE, ACCORDINGLY, SE T ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE PENALTY MATTER TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO RE-DECIDE PENALTY MAT TER IN ACCORDANCE WITH LAW BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER SHALL PASS A SPEAKING ORDER W ITH REGARD TO THE RELEVANCE OF STATEMENTS U/S. 161 CRPC WITH THE PENALTY MATTER IN THE CASE OF THE ASSESSEE AND ALSO WITH RESPECT TO THE EXPLANATION O F THE ASSESSEE THAT HE AND ITA NO. 3442/DEL./2016 5 HIS WIFE HAVE DECLARED MORE JEWELLERY IN THE WEALTH -TAX RETURN. THE ASSESSEE IS DIRECTED TO ADDUCE SUFFICIENT EVIDENCE BEFORE TH E ASSESSING OFFICER FOR FINALIZATION OF THE MATTER. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *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