Sh. Uperndra Singh Raghav, Aligarh V. I.T..O. ,Ward-2, Aligarh

ITA 358/AGR/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0787 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 5 month(s) 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 04-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 271(1)(c); 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND D R . MITHA LAL MEENA, ACCOUNTANT MEMBER I.T.A NO. 358 /AGRA/201 4 (ASSESSMENT YEAR - 2005 - 06 ) SHRI UPENDRA SINGH RAGHAV PRINCE COLONIZERS, GANDHI ASHRAM, BANNA DEVI, ALIGAR H . PAN NO. A GZPR5471P (ASSESSEE) V S .. ITO, WARD (2), ALIGARH. (R EVENUE ) A SSESSEE BY SHRI PANKAJ GARGH , ADV. REVENUE BY SHRI WASEEM ARSHAD, SR. DR. ORDER PER , A. D. JAIN, JUDICIAL MEMBER: THIS IS A SSESSEES APPEAL FOR ASSESSMENT YEAR 2005 - 06, TAKING THE FOLLOWING GROUNDS: 1. BECAUSE LD. CIT (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE EX - PARTE PENALTY ORDER PASSED BY THE A.O. U/S 271(1)(C). DATE OF HEARING 0 9 . 0 1 .201 7 DATE OF PRONOUNCEMENT 07 .0 2 .201 7 I.T.A NO. 358 /AGRA/2014 2 2. BECAUSE THE PENALTY RS.10,57,491/ - U/S 271(1)(C) CONFIRMED BY THE LD. CIT (A) IS WRONG, ILLEGAL AND AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 3. BECAUSE THE LD. CIT (APPEALS) WAS NOT JUSTIFIED IN NOT CONSIDERING THE EVIDENCES FILED IN THE FORM OF PAPER - BOOK DURING THE AP PELLATE PROCEEDINGS. 4. BECAUSE THE LD. CIT (APPEALS) WAS NOT JUSTIFIED IN HOLDING THAT CIT(A) AND ITAT DID NOT ADMIT THE ADDITIONAL EVIDENCE AND CONFORMED THE QUANTUM APPEAL. 5. BECAUSE THE LD. CIT (APPEALS) HAS FAILED TO APPRECIATE THAT THE HONBLE ALLAHABAD H IGH COURT DULY ADMITTED THE APPEAL FILED AGAINST THE ORDER U/S 143(3) AND IS STILL PENDING. 6. BECAUSE THE LD. CIT (A) WAS NOT JUSTIFIED IN HOLDING THAT EVEN AFTER PROPER AND SUFFICIENT OPPORTUNITY, THE ASSESSEE FAILED TO DISCHARGED THE ONUS CAST UPON HIM BY SECTION 68 TO PROVE THE GENUINENESS OF CREDITS. 7. BECAUSE THE LD. CIT (A) HAS FAILED TO APPRECIATE THAT ALL THE DOCUMENTARY EVIDENCE WERE PRODUCED DURING THE QUANTUM APPEAL AND THE APPELLANT HAD DULY DISCHARGED HIS ONUS. 8. BECAUSE THE LD. CIT (A) WAS NOT JUSTI FIED IN HOLDING THAT THE APPELLANT HAS FAILED TO SUBSTANTIATE HIS CLAIM DESPITE DUE OPPORTUNITY. I.T.A NO. 358 /AGRA/2014 3 9. BECAUSE THE LD. CIT (A) HAS FAILED TO APPRECIATE THAT PENALTY NOTICES ISSUED BY THE A.O. AND REPLIES FILED BY THE APPELLANT BEFORE THE QUANTUM APPEAL PENDING B EFORE THE LOWER AUTHORITIES. AFTER DECISION IN QUANTUM APPEAL BY THE HONBLE ITAT ONLY NOTICE DATED 06 - 03 - 2013 HAD BEEN ISSUED BUT NEVER SERVED ON THE APPELLANT AND HENCE OBSERVATION OF THE LD. CIT (A) THAT PROPER OPPORTUNITY HAD BEEN GIVEN ARE CONTRARY T O THE FACTS. 10. BECAUSE THE CITATION PLACED ON BY THE LD. CIT (A) IN HIS IMPUGNED ORDER ARE TOTALLY DIFFERENT FROM THE CASE OF THE APPELLANT. 11. BECAUSE THE LD. CIT (APPEALS) HAS FAILED TO APPRECIATE THAT THE ALL FACTS WERE DISCLOSED DURING THE COURSE OF APPEL LATE PROCEEDINGS IN QUANTUM APPEAL AS WELL AS IN PRESENT PENALTY APPEAL. 2. THE FACTS ARE THAT THE ASSESSEE HAD CREDITED HI S BOOKS WITH VARIOUS SUMS RECEIVED FROM VARIOUS CREDITORS. AS PER THE ASSESSMENT ORDER, THE ASSESSEE, DESPITE DUE OPPORTUNITY, FAILED TO DISCHARGE HIS ONUS U/S 68 OF THE I.T. ACT, TO PROVE THE GENUINENESS OF SUCH CREDITS. THE AO, AS SUCH, MADE THE ADDITION . THE LD. CIT(A) AS WELL AS THE ITAT CONFIRMED THE ADDITION. CONCEALMENT PENALTY WAS LEVIED, WHICH HAS BEEN CONFIRMED BY VIRTUE OF THE IMPUGNED ORDER. WHILE CONFIRMING THE PENALTY, THE LD. CIT(A) HAS, INTER ALIA, OBSERVED THAT: THE CONTENTION THAT THE I.T.A NO. 358 /AGRA/2014 4 APP EAL AGAINST QUANTUM ADDITION HAS BEEN ADMITTED BY THE HONBLE HIGH COURT IS ALSO OF NO AVAIL BECAUSE THERE IS NO PROVISION IN LAW TO THE EFFECT THAT PENALTY WILL NOT BE LEVIED WHERE APPEAL IS ADMITTED BY THE HIGH COURT. 3. AGGRIEVED, THE ASSESSEE IS IN A PPEAL. 4. AS BEFORE THE LD. CIT(A), THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSEES APPEAL AGAINST THE ORDER OF THE T RIBUNAL CONFIRMING THE ADDITIONS MADE, HAS BEEN ADMITTED IN THE HONBLE HIGH COURT. THE LD. DR, ON THE OTHER HAND, HAS STRONGLY RELIED ON THE IMPUGNED ORDER. 5. IT IS NOT DISPUTED THAT AGAINST THE TRIBUNAL ORDER CONFIRMING THE ADDITIONS , THE ASSESSEES APPEAL STANDS ADMITTED BY THE HONBLE HIGH COURT. THAT BEING SO, THE QUESTION OF SUSTAINABILITY OF THE ADDITIONS IS A DEB ATABLE ISSUE AND IT IS WELL SETTLED THAT NO CONCEALMENT PENALTY IS LEVIABLE ON DEBATABLE ISSUES, AS HAS BEEN HELD, INTER ALIA, IN CIT VS. NAYAN BUILDERS, PASSED BY THE HONBLE BOM BAY HIGH COURT ON 08.07.2014, IN ITA NO.415/2012 (COPY AT PAGES 5 TO 6 OF T H E CASE LAWS PAPER BOOK FILED BY THE ASSESSEE). 6. IN VIEW OF THE ABOVE, FINDING THE GRIEVANCE OF THE ASSESSEE IN THIS REGARD TO BE JUSTIFIED, THE SAME IS ACCEPTED. I.T.A NO. 358 /AGRA/2014 5 7. IN VIEW OF THE ABOVE, NO CONCEALMENT PENALTY BEING LEVIABLE ON DEBATABLE ISSUES, THE PE NALTY IN QUESTION IS FOUND TO BE UNSUSTAINABLE IN LAW AND, ACCORDINGLY, IT IS DELETED. 8. IN THE RESULT, THE APPEAL IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 07 /0 2 / 201 7 . SD/ - SD/ - ( DR . MITHA LAL MEENA) (A.D. JAIN) ACCOUTANT MEMBER JUDICIAL MEMBER DATED: 07 /0 2 /2017 *AKV* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR I.T.A NO. 358 /AGRA/2014 6 DATE 1. DRAFT DICTATED (DNS) 03. 0 1 .201 7 PS 2. DRAFT PLACED BEFORE AUTHOR 06 . 0 1 .201 7 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.