Sandeep Kumar, Gurgaon V. DCIT, Gurgaon

ITA 3519/DEL/2015

• Counselvise Citation: 351920114 RSA 2015
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 31-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 02-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Section: 40A(3)

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - I : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO . 3519 /DEL/20 15 ASSESSMENT YEAR : 200 7 - 08 SANDEEP KUMAR, C.S. GUPTA, ADVOCATE 123, DEEP PLAZA OPP. DISTRICT COURTS, GURGAON DISTT GGN (H ARYANA) PAN : AFNPK 0140 F VS. DCIT, CIRCLE1(1), GURGAON (APPELLANT ) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SHRI OM PRAKASH MEENA , SR. DR DATE OF HEARING: 31.07.2015 DATE OF PRONOUNCEMENT: 31.7 .2015 ORDER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 24 .0 4 .20 15 UPHOLDING THE PENALTY AMOUNTING TO RS. 91,800/ - IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 IN RELATION TO THE AY 2007 - 08 . ITA NO. 3519 /DEL/20 15 2 2. BRIEFLY STAT ED THE FACTS OF THE CASE ARE THAT THE ASSESSMENT WAS COMPLETED BY MAKING TWO ADDITIONS, NAMELY, O F RS.3,00,000/ - U/S 40A(3) OF THE ACT FOR INCURRING EXPENSES IN CASH IN EXCESS OF PRESCRIBED LIMIT, AND O F RS.1,87,678/ - ON ACCOUNT OF FAILURE TO EXPLAIN SOURC E OF PAYMENT OF STAMP DUTY. WHEN THE MATTER FINALLY CAME UP BEFORE THE TRIBUNAL IN QUANTUM PROCEEDING S , THE ADDITION OF RS.3,00,000/ - WAS SUSTAINED AND THE OTHER WAS DELETED. ON THE BASIS OF SUSTENANCE OF ADDITION OF RS.3,00,000/ - U/S 40A(3) OF THE ACT, TH E ASSESSING OFFICER IMPOSED PENALTY AMOUNTING TO RS.91,800/ - U/S 271(1)(C) OF THE ACT , WHICH C O ME TO BE APPROVED IN FIRST APPEAL. 3. I HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. AS SUCH , I AM PROCEEDING TO DISPOSE OF THIS APPEAL EX - PARTE QUA THE ASSESSEE ON MERITS . 4. IT IS OBSERVED THAT THE PENALTY HAS BEEN IMPOSED AND APPROVED ON ACCOUNT OF ADDITION MADE FOR RS.3,00,000/ - U/S 40A(3) OF THE ACT . T HIS ADDITION HAS BEEN MADE ON ACCOUNT OF CASH PAYMENT S MADE BY THE ASSESSEE IN EXCESS OF THE PRESCRIBED LIMIT. SUCH PAYMENTS ARE RECORDED IN THE BOOKS OF ACCOUNT AND AS SUCH THERE CAN BE NO QUESTION OF MAKING PAYMENT OUTSIDE THE BOOKS OF ACCOUNT , THEREBY ATTRACTING ANY C ONCEALMENT OF INCOME. THE ITA NO. 3519 /DEL/20 15 3 MERE FACT THAT AN ADDITION MADE IN THE ASSESSMENT PROCEEDING S HAS BEEN SUSTAINED , DOES NOT AUTOMATICALLY GIVE LICENSE TO THE ASSESSING OFFICER TO IMPOS E PENALTY ON SUCH ADDITION . B EFORE BRINGING ANY AMOUNT FOR CONSIDERATION TO IMP OSE PENALTY U/S 271(1)(C) OF THE ACT, IT SINE QUA NON THAT THERE MUST BE CONCEAL MENT OF INCOME OR FURNISHING IN ACCURATE PARTICULARS OF INCOME. ADVERTING TO THE FACTS OF THE INSTANT CASE, I FIND THAT THE SOLE BASIS FOR THE IMPOSING OF PENALTY IS DISALLOWANC E U/S 40A(3) OF THE ACT, WHICH IN MY CONSIDERED OPINION , DOES NOT CALL FOR ANY PENALTY U/S 271(1)(C) OF THE ACT. AS SUCH, I ORDER FOR THE DELETION OF PENALTY. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 201 5 . SD/ - (R.S. SYAL) ACCOUNTANT MEMBER DATED: 31 ST JULY, 2015 AKS ITA NO. 3519 /DEL/20 15 4 COPY FORWARDED TO 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR DY. REGISTRAR, ITAT, NEW DELHI *