SUSHMA R. SINGH, DELHI V. ITO 20(3)(3), MUMBAI

ITA 3708/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3864 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Unexplained investment; Salary income
• Section: 271(1)(c); 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.3708/MUM/2017 (ASSESSMENT YEAR 2009-10) SUSHMA R. SINGH SF 205, DEFENSE COLONY, GULMOHAR ENCLAVE, GULMOHAR PARK, DELHI- 110049 P AN: AMNPS5787K VS. ITO, WARD- 25(1)(3) C-10, B.K.C COMPLEX, MUMBAI. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI CHAUDHARY ARUN KUMAR SINGH (DR) DATE OF HEARING : 30.01.2019 DATE OF PRONOUNCEMEN T : 30.01.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF THE IN COME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER O F INCOME-TAX-37, MUMBAI (THE LD. CIT(A) DATED 18.01.2017, WHICH IN T URN ARISES FROM THE PENALTY ORDER LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT DATED 30.05.2015. THE ASSESSEE HAS RAISED THE F OLLOWING GROUNDS OF APPEAL: 1. THAT WITHOUT PREJUDICE, NO PROPER AND REASONABLE OP PORTUNITY OF HEARING HAS BEEN PROVIDED TO THE ASSESSEE OF BEING HEARD. 2. THAT UNDER THE FACTS & CIRCUMSTANCES OF CASE, BOTH THE LOWER AUTHORITIES ERRED IN LAW & ON MERITS IN MAKING AND THEN SUSTAINING TH E PENALTY ON ADDITIONS OF RS. 41,12,000/- U/S 68 WHICH IS BEING ALE PROCEEDS OF GOLD ORNAMENTS. 3. THAT BOTH THE LOWER AUTHORITIES ERRED ON LAW AND ON MERITS ON CONSIDERING, DECLARED INCOME FROM SALARY RS. 6,77,600/- & AGRICU LTURE INCOME RS. ITA NO. 3708 MUM 2017-SUSHMA R. SINGH. 2 10,59,674/- AS INCOME FROM OTHER SOURCES & THEREAFT ER MAKING & SUSTAINING PENALTIES ON ABOVE ADDITIONS. 4. THAT UNDER THE FACTS & CIRCUMSTANCES OF CASE, BOTH THE LOWER AUTHORITIES ERRED IN LAW & ON MERITS IN MAKING AND THEN SUSTAINING TH E PENALTY ON ADDITION OF RS. 13,30,000/- U/S 69 AS UNEXPLAINED INVESTMENT IN AGRICULTURAL LAND. 2. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE THE SER VICE OF NOTICE FOR MORE THAN ONE OCCASION. THEREFORE, WE LEFT NO OPTION EXC EPT TO HEAR THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE L D. DR FOR THE REVENUE SUBMITS THAT THE ADDITION IN THE QUANTUM ASSESSMENT ON THE BASIS OF WHICH THE PENALTY WAS LEVIED HAS BEEN RESTORED BACK BY TH E TRIBUNAL TO THE FILE OF ASSESSING OFFICER VIDE ORDER DATED 14.03.2017 IN IT A NO. 2859/MUM/2015. THEREFORE, THIS APPEAL MAY ALSO BE RESTORED TO THE FILE OF ASSESSING OFFICER WITH THE LIBERTY TO THE ASSESSING OFFICER TO TAKE A PPROPRIATE ACTION AFTER PASSING THE ORDER IN PURSUANCE OF DIRECTION OF THE TRIBUNAL IN ITA NO. 2859/MUM/2015 DATED 14.03.2017. 3. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. PERUSAL OF RECORD REVEALS THAT ASSESSMENT WAS COMPLETED BY ASSESSING OFFICER UNDER SECTION 14 4 DATED 19.12.2011 WHEREIN INCOME OF THE ASSESSEE WAS DETERMINED AT RS . 71,93,950/- AGAINST THE RETURN OF INCOME OF RS. 17,30,950/- BY MAKING V ARIOUS ADDITIONS/DISALLOWANCES. 4. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSE SSING OFFICER WAS CONFIRMED IN EX-PARTE ORDER. ON FURTHER APPEAL BEFO RE THE TRIBUNAL, THE ITA NO. 3708 MUM 2017-SUSHMA R. SINGH. 3 MATTER WAS REMANDED TO THE FILE OF ASSESSING OFFICE R TO DECIDE THE ISSUE AFRESH VIDE ORDER DATED 14.03.2017 IN ITA NO. 2859/ MUM/2015. CONSIDERING THE FACT THAT ADDITIONS ON THE BASIS OF WHICH THE PENALTY WAS LEVIED BY ASSESSING OFFICER HAS ALREADY BEEN RESTOR ED TO THE FILE OF ASSESSING OFFICER, THEREFORE, THE PENALTY ORDER PAS SED UNDER SECTION 271(1)(C) DATED 30.03.2015 WILL NOT SURVIVE. THUS, THE APPEAL OF ASSESSEE IS ALLOWED. HOWEVER, THE ASSESSING OFFICER WOULD BE AT LIBERTY TO INITIATE FRESH ACTION UNDER SECTION 271(1)(C), IF ANY, IN ACCORDAN CE WITH LAW AFTER COMPLETION OF ORDER GIVING EFFECT OF THE DIRECTION OF TRIBUNAL IN ITA NO. 2859/MUM/2015. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/ 01/2019. SD/ SD/- MANOJ KUMAR AGGARWAL PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL ME MBER MUMBAI, DATE: 30.01.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI