Sh. Gurcharan Singh, New Delhi V. ITO, New Delhi

ITA 3445/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3588 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI
• Assessee Lawyers: ASHISH GOEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI S.V. MEHROTRA, VICE PRESIDENT ITA NO.3445/DEL/2016 ASSESSMENT YEAR : 2010-11 GURCHARAN SINGH, B-146, OKHLA INDL. AREA, PHASE-1, NEW DELHI. VS. ITO, WARD- 22(1), NEW DELHI. PAN : AKAPS 4442 A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHISH GOEL, CA RESPONDENT BY : MS. BEDOBANI, SR.DR DATE OF HEARING : 02-03-2017 DATE OF PRONOUNCEMENT : 12-04-2017 O R D E R PER S.V. MEHROTRA, V.P. : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25.10.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-10, NEW DELHI, UPHOLDING THE LEVY OF PENALTY PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT TH E ACT), RELATING TO ASSESSMENT YEAR 2010-11. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE REFE RRED TO THE TRIBUNALS ORDER DATED 22.02.2017 AND POINTED OUT THAT THE ADD ITION HAS BEEN DELETED AND, THEREFORE, PENALTY ORDER DOES NOT SURVIVE. 3. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND FIND THAT THE TRIBUNAL IN PARA 4 HAS OBSERVED AS UNDER :- 2 ITA NO.3445/DEL/2016 4. I HAVE HEARD THE PARTIES AND PERUSED THE RELEVA NT MATERIAL ON RECORD. THE LD. AR DID NOT DISPUTE ANY OF THE FIGURES TAKEN BY THE AO IN THE ABOVE CALCULATION EXCEPT THE AMOUNT OF TOTAL CASH WITHDRAWALS FROM TH E ABOVE BANK TAKEN BY THE AO AT RS.28,14,780/-. THE LD. AR SUBMITTED THAT THE AO WENT WRONG IN ADOPTING THIS FIGURE AS AGAINST THE CORRECT FIGURE OF RS.41,26,97 0/-. THIS WAS SOUGHT TO BE FORTIFIED BY PLACING ON RECORD CERTAIN DETAILS OF C ASH DEPOSITS AND WITHDRAWALS FROM THE BANK ACCOUNT. THIS FACTUAL ASPECT NEEDS VE RIFICATION AT THE END OF THE AO. IN VIEW OF THIS, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER ON THIS SCORE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT HIM TO VERIFY THE FIGURE OF TOTAL CASH WITHDRAWALS FROM THE BANK AND SUBSTIT UTE THE CORRECT FIGURE WITH THE AMOUNT OF RS.28,14,780/- AND, THEREAFTER, DETERMINE UNDISCLOSED INCOME, IF ANY, FROM THE CALCULATION MADE BY HIM. 4. THEREFORE, LD. CIT(A)S ORDER CONFIRMING THE PEN ALTY NEEDS TO BE SET- ASIDE AS IT HAS NO LEGS TO STAND. HOWEVER, THE ASS ESSING OFFICER WOULD BE FREE TO TAKE ACTION IN ACCORDANCE WITH LAW AFTER GI VING EFFECT TO TRIBUNALS ORDER. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED IN TERMS OF AFOREMENTIONED OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF APRIL, 2017. SD/- (S.V. MEHROTRA) VICE PRESIDENT DATED : 12-04-2017. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI