Sh. Mohd. Nasir, Ghaziabad V. ITO, Ghaziabad

ITA 3699/DEL/2013

• Counselvise Citation: 369920114 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA
• Assessee Lawyers: SANJEEV JAIN
• Keywords: Initiation of penalty proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .369 369 369 3699 99 9/DEL/2013 /DEL/2013 /DEL/2013 /DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 SHRI MOHD. NASIR SHRI MOHD. NASIR SHRI MOHD. NASIR SHRI MOHD. NASIR, ,, , C/O HAJI FRUIT CO., C/O HAJI FRUIT CO., C/O HAJI FRUIT CO., C/O HAJI FRUIT CO., SUBZI MANDI, SAHIBAB SUBZI MANDI, SAHIBAB SUBZI MANDI, SAHIBAB SUBZI MANDI, SAHIBABAD, AD, AD, AD, UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. PAN : ACAPN1003G PAN : ACAPN1003G PAN : ACAPN1003G PAN : ACAPN1003G. .. . VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1(4), 1(4), 1(4), 1(4), GHAZIABAD, GHAZIABAD, GHAZIABAD, GHAZIABAD, UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJEEV JAIN, CA. RESPONDENT BY : SHRI P. DAM KANUNJHA, SR.DR. DATE OF HEARING : 11.03.2015 11.03.2015 11.03.2015 11.03.2015 DATE OF PRONOUNCEMENT : 01.04.2015 01.04.2015 01.04.2015 01.04.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA PER G.C. GUPTA, VP , VP , VP , VP : :: : THIS APPEAL BY THE ASSESSEE FOR THE AY 2008-09 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), GHAZIABAD DATE D 4 TH MARCH, 2013. 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER:- 1. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN UPHOLDING THE PENALTY AMOUNTING TO RS.67,276/- LEVI ED BY THE ASSESSING OFFICER U/S 221(1) OF THE ACT. 2. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN FAILI NG TO APPRECIATE THAT THE AMOUNT OF TAX AND INTEREST PAYABLE BY THE ASSESSEE U/S 140A OF THE ACT STOOD P AID BY THE ASSESSEE ON 17.11.08 PRIOR TO INITIATION OF PENALTY PROCEEDINGS U/S 221(1) OF THE ACT AND THAT THE ASSESSEE COULD NOT BE SAID TO BE AN ASSESSEE IN DEF AULT AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS U/ S 221(1) OF THE ACT. ITA-3699/DEL/2013 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE PENALTY UNDER SECTION 221(1) OF THE INCOME-TAX ACT, 1961 WA S LEVIED ON THE ASSESSEE FOR NO FAULT OF THE ASSESSEE. HE SUBMITTE D THAT THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR 2008-09 WAS FILED ON 26.09.2008 AND THE TOTAL TAX PAYABLE ALONG WITH INT EREST DUE WAS PAID VOLUNTARILY ON 17.11.2008 AT `68,622/-. HE SUBMITT ED THAT THE PAYMENT WAS MADE WITHIN A PERIOD LESS THAN TWO MONT HS FROM THE DATE OF FILING OF THE RETURN AND MUCH BEFORE THE INITIAT ION OF PENALTY PROCEEDINGS UNDER SECTION 221(1) OF THE ACT AND, TH EREFORE, THE ASSESSEE COULD NOT BE SAID TO BE IN DEFAULT AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 221(1) OF THE ACT . HE SUBMITTED THAT THE ASSESSING OFFICER HAS LEVIED PENALTY AT 10 0% OF THE TAX AND INTEREST DUE ON THE FILING OF THE RETURN BY THE ASS ESSEE. 4. LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LE ARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE FACT OF PA YMENT OF TAX WITH INTEREST WITHIN TWO MONTHS OF THE FILING OF THE RET URN SHOULD BE VERIFIED BY THE ASSESSING OFFICER. HE HAS RELIED ON THE ORD ER OF THE ASSESSING OFFICER AND THE CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE S IDES AND PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND THAT THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YE AR 2008-09 WAS FILED BY THE ASSESSEE ON 26.09.2008 AND TAX ALONG W ITH INTEREST WAS PAID VOLUNTARILY BY THE ASSESSEE ON 17.11.2008, I.E ., WITHIN A PERIOD OF LESS THAN TWO MONTHS FROM THE DATE OF FILING OF THE RETURN IN THIS CASE. THE PENALTY PROCEEDINGS UNDER SECTION 221(1) OF THE ACT WERE INITIATED MUCH AFTER THE PAYMENT OF TAX BY THE ASSESSEE. THE ASSESSING OFFICER HAS LEVIED TAX AT THE RATE OF 100% OF THE TAX AND I NTEREST DUE IN THIS CASE. IN THE FACTS OF THE CASE, WE ARE OF THE CONS IDERED VIEW THAT THE ITA-3699/DEL/2013 3 CONDUCT OF THE ASSESSEE WAS NOT MALA FIDE AND THE L EVY OF PENALTY AT MAXIMUM RATE OF 100% OF THE TAX DUE BY THE ASSESSIN G OFFICER COULD NOT BE SUSTAINED. MERELY BECAUSE THE ASSESSEE COUL D NOT GIVE AN EXPLANATION, IT COULD NOT BE SAID THAT IT SHOULD BE HELD LIABLE FOR LEVY OF PENALTY UNDER SECTION 221(1) OF THE ACT. IN THE FA CTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CAS E FOR LEVY OF PENALTY UNDER SECTION 221(1) OF THE ACT AND, ACCORDINGLY, T HE PENALTY LEVIED AMOUNTING TO `67,276/- IS CANCELLED AND THE GROUNDS OF APPEAL ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2015. SD/- SD/- ( (( ( T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR T.S. KAPOOR ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI MOHD. NASIR, SHRI MOHD. NASIR, SHRI MOHD. NASIR, SHRI MOHD. NASIR, C/O HAJI FRUIT CO., SUBZI MANDI, SAHIBABAD, C/O HAJI FRUIT CO., SUBZI MANDI, SAHIBABAD, C/O HAJI FRUIT CO., SUBZI MANDI, SAHIBABAD, C/O HAJI FRUIT CO., SUBZI MANDI, SAHIBABAD, UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. UTTAR PRADESH. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1(4), GHAZIABAD, UTTAR PRADESH. 1(4), GHAZIABAD, UTTAR PRADESH. 1(4), GHAZIABAD, UTTAR PRADESH. 1(4), GHAZIABAD, UTTAR PRADESH. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR