ADIT (E), New Delhi V. Guru Ram Dass Public School, New Delhi

ITA 3612/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65425 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 10-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGHDR
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BENC H BEFORE SHRI A.N. PAHUJA, AM & SHRI C.M.GARG, JM ITA NO.3612 /DEL/2012 ASSESSMENT YEAR: 2005-06 ADIT(E), TRUST CIRCLE -II, NEW DELHI V/S . M/S GURU RAM DASS PUBLIC SCHOOL,40,TAGORE GARDEN, NEW DELHI [PAN : NA] (APPELLANT) (RESPONDENT) ASSESSEE BY NONE REVENUE BY SHRI SATPAL SINGH,DR DATE OF HEARING 10-09-2012 DATE OF PRONOUNCEMENT 10-09-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 10.07.2012 BY THE REVENUE AGAI NST AN ORDER DATED 30.04.2012 OF THE LD. CIT(A)-XXVIII, NEW DELH I, RAISES THE FOLLOWING GROUNDS:- 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED DELETING THE PENALTY O F ` 3,24,931/- IMPOSED BY THE AO ON THE GROUND THAT ASSESSEE HAS NOT REPRESENTED BEFORE THE AO DURING PENALTY PROCEEDINGS, DESPITE REMINDERS ISSUED BY TH E AO.. 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW,, THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE AD DITION WAS MADE BY THE AO ON THE FACT THAT THE ASSESSEE HA S NOT FURNISHED THE DETAILS OF CASH DEPOSITS IN BANK A/C DURING THE COURSE OF ASSESSMENT PROCEEDINGS DESPITE REMINDERS GIVEN BY THE AO AND WHEREIN GENUINENESS O F CLAIM OF THE ASSESSEE MADE AT APPELLATE STAGE IS DO UBTFUL AND ASSESSEE HAS NOT REPRESENTED BEFORE THE AO DUR ING PENALTY PROCEEDINGS. ITA N O.3612 /DEL./2012 2 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR A MEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. AT THE OUTSET, NONE APPEARED BEFORE US ON BEHA LF OF THE ASSESSEE NOR SUBMITTED ANY REQUEST FOR ADJOURNMENT. CONSIDER ING THE NATURE OF ISSUE AND FINDINGS OF THE LD. CIT(A), THE BENCH PROCEEDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. DR. 3. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE TH AT ASSESSMENT IN THIS CASE WAS COMPLETED U/S 144 OF THE INCOME-TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) ON AN INCOME OF ` `10,52,000/- VIDE ORDER DATED 28 TH DECEMBER, 2007, THE ASSESSEE HAVING NOT FILED THE RETURN NOR EXPLAINED THE SOURCE OF CASH DEPOSITS OF ` 10,52,000/- IN THEIR SB A/C WITH CANARA BANK. INTER ALIA, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE ALSO INITIATED. SUBSEQU ENTLY, IN RESPONSE TO A SHOWCAUSE NOTICE BEFORE LEVY OF PENALTY, THE ASSESS EE DID NOT SUBMIT ANY REPLY. ACCORDINGLY,. PENALTY OF ` `3,24,931/- @100% OF THE TAX SOUGHT TO BE EVADED ON THE AFORESAID AMOUNT OF ` `10,52,000/- WAS IMPOSED U/S 271(1)(C) OF THE ACT F OR FURNISHING INACCURATE PARTICULARS OF INCOME.. 4. ON APPEAL, THE LD. CIT(A) CANCELLED THE PENALTY , QUANTUM ADDITION HAVING BEEN DELETED BY THE LD. CIT(A) VIDE ORDER DA TED 27.3.2012. 5 THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR DID NOT DISP UTE BEFORE US THAT THE QUANTUM ADDITION HAD BEEN DELETED IN THIS CASE BY THE LD. C IT(A) AND NO FURTHER APPEAL SEEMS TO HAVE BEEN PREFERRED. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. INDISPUTABLY, QUANTUM ADDITION HAS BEEN DELET ED BY THE LD. CIT(A) IN THIS CASE VIDE HIS ORDER DATED 27.3.2012 AND NO FURTHER APPEAL SEEMS TO HAVE BEEN ITA N O.3612 /DEL./2012 3 PREFERRED. SINCE THE ADDITION ,FORMING THE BASIS OF LEVY OF PENALTY ITSELF HAS BEEN SET ASIDE, PENALTY IMPOSED U/S 271(1)(C) OF THE ACT DOES NOT SURVIVE. HONBLE SUPREME COURT IN THE CASE OF K.C.BUILDERS VS. ACIT ,265 ITR 562(SC) HELD THAT ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. WHERE AN ORDER OF ASSESSMENT O R REASSESSMENT ON THE BASIS OF WHICH PENALTY HAS BEEN LEVIED ON TH E ASSESSEE, HAS ITSELF BEEN FINALLY SET ASIDE OR CANCELLED BY THE T RIBUNAL OR OTHERWISE, THE PENALTY CANNOT STAND BY ITSELF AND T HE SAME IS LIABLE TO BE CANCELLED. HONBLE DELHI HIGH COURT IN THE CA SE OF CIT VS. R.DALMIA,(1992)107 TAXATION 107, HELD THAT NO PENAL TY SURVIVES AFTER DELETION OF ADDITIONS, FORMING THE BASIS FOR THE LEVY OF PENALTY. SIMILAR VIEW WAS TAKEN IN ADDL. COMMISSIONER OF INC OME-TAX V. BADRI KASHI PRASAD (1993] 200 ITR 206 (ALL) AND PRABHAT O IL TRADERS V. INCOME-TAX OFFICER (NO. 3) (1996) 218 ITR (A.T.) 39 (ITAT, AHMEDABAD),CITY DRY FISH COMPANY V. COMMISSIONER OF INCOME-TAX (1999) 238 ITR 63 (A.P.) , CIT VS. MOHD. BUX SOKAT ALI (2004) 265 ITR 326 (RAJ)AND ACIT VS. VIP INDUSTRIES (2009) 122 TTJ 289 (MUM). 5.1 SINCE THE VERY BASIS UPON WHICH THE PENALTY HAS BEEN IMPOSED ON THE AMOUNT OF ` ` 10,52,000/- ADDED BY THE AO, DOES NOT EXIST IN VIEW OF THE AFORESAID ORDER DATED 27-3-2012 OF THE LD. CIT(A) IN QUANTUM APPEAL , WE ARE OF THE OPINION THAT PENALT Y LEVIED IN RELATION TO THE SAID AMOUNT DOES NOT SURVIVE. SINCE THE LD. DR DID NOT PLACE BEFORE US ANY MATERIAL ,CONTROVERTING THE AFORESAID FINDINGS OF THE LD. CIT(A), ACCORDINGLY, GROUND NOS . 1 & 2 IN THE APPEAL ARE DISMISSED.. 6. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE U S IN TERMS OF RESIDUARY GROUND NO.3 IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 7. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. ITA N O.3612 /DEL./2012 4 8. IN THE RESULT, APPEAL IS DISMISSED. SD/- SD/- (C.M.GARG) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. ADIT, TRUST CIRCLE -II, NEW DELHI 3. DIT(E) CONCERNED. 4. CIT(A)-XXVIII, NEW DELHI 5. DR, ITAT,C BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT