Shri Pardeep Kumar, New Delhi V. ITO, Rohtak

ITA 360/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4504 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R C D AN DE
• Assessee Lawyers: ASHWANI TANEJA
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND SHRI SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.360/DEL/2016 ASSESSMENT YEAR : 2007-08 PARDEEP KUMAR C/O. M/S. RRA TAX INDIA, D-28, SOUTH EXTENSION, PART-I NEW DELHI VS. ITO WARD-3 ROHTAK PAN : AQKPS5702K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, ADV. DEPARTMENT BY : SHRI R.C.DANDE, SR. DR DATE OF HEARING : 20-09-2017 DATE OF PRONOUNCEMENT : 28 -09-2017 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 26.11.2015 OF THE CIT(A)-2, GURGAON RELATING TO AS SESSMENT YEAR 2007-08. 2. LEVY OF PENALTY OF RS. 6,41,580/- BY THE AO U/S 271(1)(C) OF IT ACT AND CONFIRMED THE CIT(A) IS THE ONLY ISSUE RAIS ED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 2 ITA NO.360/DEL/2016 3. FACTS OF THE CASE, IN BRIEF, ARE THAT TH E ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 11 TH JULY, 2007 DECLARING TAXABLE INCOME OF RS. 1,03,540/- AND AGRICULTURAL INCOME OF 40,250/-. TH E AO COMPLETED THE ASSESSMENT ON A TOTAL INCOME OF RS. 20,90,630/- BY MAKING VARIOUS ADDITIONS WHICH INCLUDED ADDITIONS OF RS. 19,80,000/- U/S 69 OF THE I.T.ACT, 1961 ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT MAINTA INED WITH CORPORATION BANK. SIMILARLY, THE AO HAD ALSO MADE ADDITION OF R S. 40,250/- BY TREATING AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. T HE APPEAL OF THE ASSESSEE BEFORE THE CIT(A) WAS DISMISSED. SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT. REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSESSEE, THE AO LEVIED PENALTY OF RS. 6,41 ,580/- BEING 100% OF TAX SOUGHT TO BE AVOID. 4. SINCE THERE WAS DELAY IN FILING OF THE APPE AL, THE ASSESSEE FILED A CONDONATION PETITION BEFORE CIT(A) EXPLAINING THE REASONS FOR SUCH DELAY. HOWEVER, THE LD. CIT(A) HELD THAT THERE WAS NO GENU INE CAUSE FOR SUCH DELAY IN FILING THE APPEAL AND ACCORDINGLY DISMISSED THE APP EAL FILED BY THE ASSESSEE ON THE GROUND THAT THE SAME HAS BEEN FILED OUT OF TI ME. 5. AGGRIEVED WITH SUCH ORDER OF CIT(A), THE ASSESSE E IS IN APPEAL BEFORE THE TRIBUNAL WITH THE FOLLOWING GROUNDS :- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF ASSESSEE AS OUT OF TIME AND THAT TOO WITHOUT APPRECIATING THE F ACTS AND CIRCUMSTANCES OF THE CASE AND HAS FURTHER ERRED IN NOT DECIDING THE APPE AL ON MERITS. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMS TANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY OF RS.6,41,580/- AND THAT TOO WITHO UT ASSUMING JURISDICTION AS PER LAW AND WITHOUT CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEA RD. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE M ATTER, ACTION OF LD. CIT(A) IN 3 ITA NO.360/DEL/2016 CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271(L)(C) IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE . 4. THAT THE ASSESSEE CRAVES THE LEAVE TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 6. THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE QUANTUM PROC EEDING AND SUBMITTED THAT THE ADDITION ON WHICH PENALTY HAS BEEN LEVIED BY TH E AO HAS BEEN DELETED BY THE TRIBUNAL. HE, HOWEVER, SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER CONDONING THE DELAY. 7. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE AO AND THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE DECISI ON OF THE TRIBUNAL IN ASSESSEES OWN CASE. WE FIND THE AO MADE ADDITION O F RS. 19,30,000/- BEING CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE U/ S 69 OF THE IT ACT. SIMILARLY, THE AO HAD ALSO MADE ADDITION OF RS. 40,250/- TREA TING THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AS INCOME FROM OTHER SOURC ES. SINCE THE ASSESSEE COULD NOT SUCCEED IN APPEAL BEFORE THE CIT(A), THE AO INI TIATED PENALTY PROCEEDINGS AND LEVIED PENALTY OF RS. 6,41,580/- U/S 271(1)(C) OF THE IT ACT WHICH HAS BEEN CONFIRMED BY THE CIT(A). WE FIND THE LD. CIT(A) CON FIRMED THE PENALTY SO LEVIED BY THE AO ON THE GROUND THAT THE APPEAL WAS FILED BELATEDLY AND THE DELAY IN SUCH FILING OF THE APPEAL WAS NOT EXPLAINED BEFO RE HIM TO HIS SATISFACTION. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS DELETED THE MAJOR ADDITION OF 19,30,000/- IN THE ORDER PASS ED VIDE ITA NO. 2150/DEL/2011 ORDER DATED 30.11.2012 FOR ASSESSMENT YEAR 2007-08. ALTHOUGH THE ORDER WAS PASSED BEFORE THE CIT(A) CONFIRMED TH E PENALTY SO LEVIED, HOWEVER, THE SAME WAS NOT CONSIDERED BY THE CIT(A) BEFORE DISMISSING THE 4 ITA NO.360/DEL/2016 APPEAL TREATING THE SAME IS TIME BARRED. SINCE THE MAJOR ADDITION OF RS. 19,30,000/- HAS BEEN DELETED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS, THEREFORE, IN ALL FAIRNESS AND IN THE INTEREST OF J USTICE, WE DEEM IT PROPER TO RESTORE THE MATTER TO THE FILE OF THE CIT(A) WITH T HE DIRECTION TO SYMPATHICALLY CONSIDER THE DELAY IN FILING OF THE APPEAL AND ADJU DICATE THE ISSUE ON MERIT. WE HOLD IN DIRECT ACCORDINGLY. THE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 SEPTEMBER , 2017. SD/- SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28-09-2017. SUJEET/ BINITA COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE DRP-IV, NEW DELHI 4) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI 5 ITA NO.360/DEL/2016 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 22.09.2017 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 22.09.2017 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON .9.2017 SR. PS/PS 7 DATE OF UPLOADING OF ORDER .9.2017 SR. PS/PS 8 FILE SENT TO BENCH CLERK .9.2017 SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R. 11 DATE OF DISPATCH OF ORDER