Sh. Abhinav Bindra, Dehradun V. ACIT, Dehradun

ITA 3944/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53255 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Keywords: Additional evidence
• Section: 271(1)(c); 143(3); 148

Judgement Text

ITA NO.3944/DEL/2011 1 IN THE INCOME TAX APPELLAT E TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.3944/DEL/2011 ASSTT. YEAR: 2005-06 SHRI ABHINAV BINDRA, VS ASSTT. COMMISSIO NER OF INCOME TAX, 80, HARDWAR ROAD, CIRCLE 2, DEH RADUN. DEHRADUN. (PAN/GIR NO.AFSPB7052A) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHWANI KUMAR RESPONDENT BY: SHRI SRUJANI MOH ANTY, SR. DR O R D E R PER I.P. BANSAL, J.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER PASSED BY THE CIT(A) DATED 2 ND JUNE, 2011 FOR ASSTT. YEAR 2005-06. THE GROUNDS OF APPEAL READ AS UNDER: THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT , 1961 BY THE LD. CIT(A)-II, DEHRADUN IS AGAINST LAW AND FACT S ON THE FILE INASMUCH AS HE WAS NOT JUSTIFIED TO ARBITRARILY UPH OLD LEVY OF PENALTY U/S 271(1)(C) AT RS.2,55,000/-. 2. THE IMPUGNED ASSESSMENT WAS FRAMED VIDE ORDER DA TED 8.12.2008 PASSED UNDER SECTION 143(3) R/W SECTION 148 OF THE ACT. INFORMATION FROM ITA NO.3944/DEL/2011 2 AIR WAS RECEIVED, ON THE BASIS OF WHICH IT WAS FOUN D THAT THERE WERE CREDIT CARD TRANSACTIONS OF RS.8,61,576 THROUGH THE CREDIT CARD OF THE ASSESSEE. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME. THE ASS ESSEE EXPRESSED HIS INABILITY TO GET THE DETAILS OF THE SBI CARD TRANSA CTIONS FOR THE RELEVANT PERIOD AND THE BANK DETAILS AS THE PAYMENTS WERE OLD AND R ELEVANT RECORDS WERE NOT TRACEABLE. THUS, THE ADDITION WAS MADE ON THAT ACC OUNT AND ON WHICH THE PENALTY HAS BEEN LEVIED. 3. LEARNED AR OF THE ASSESSEE HAS PRODUCED BEFORE U S ADDITIONAL EVIDENCE VIDE WHICH HE HAS CLAIMED THAT ALL THESE P AYMENTS BEING THROUGH ACCOUNT PAYEE CHEQUES WERE MADE THROUGH M/S HI-TECH LIVESTOCK CO. LTD. AND ALL THE PAYMENTS ARE MADE THROUGH UTI BANK. HE HAS PRODUCED BEFORE US A COPY OF THE ACCOUNT OF THE ASSESSEE WITH M/S H I-TECH LIVESTOCK CO. LTD. IN WHICH ALL THE PAYMENTS OF RS. 8,61,433.70 W ERE MADE THROUGH ACCOUNT PAYEE CHEQUES AS CREDIT CARD PAYMENTS. HE SUBMITTED THAT AT THE TIME OF ASSESSMENT, THE ASSESSEE DID NOT HAVE PROPE R DETAILS AND, THEREFORE, THIS EVIDENCE COULD NOT BE PRODUCED. HE SUBMITTED T HAT THE EVIDENCE SUBMITTED WILL GO TO THE ROOT OF THE MATTER AND IT WILL BE A CASE WHERE EVEN NO ADDITION COULD BE MADE. THEREFORE, THERE IS NO QUESTION OF LEVY OF PENALTY. HE SUBMITTED THAT FOR VERIFICATION THIS E VIDENCE MAY BE SENT TO THE FILE OF THE AO. ITA NO.3944/DEL/2011 3 4. ON THE OTHER HAND, LD. DR HAS RELIED UPON THE OR DER OF THE AO AND THE CIT(A). 5. WE HAVE CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ADMIT THE AFOREMENTIONED EVIDENCE AS THE SAME WILL GO TO THE ROOT OF THE MATTER AS IT IS A CASE OF CONCEALMENT PENALTY. FURTHER, IN T HE ASSESSMENT ORDER, IT HAS BEEN MENTIONED THAT DUE TO NON-AVAILABILITY OF EVID ENCE, THE ASSESSEE HAS OFFERED THIS AMOUNT AS HIS INCOME. THAT FACT CANNO T GO AGAINST THE ASSESSEE IN PENALTY PROCEEDINGS AS THE ASSESSEE WILL BE HAVI NG RIGHT TO CONTEST THE LEVY OF PENALTY INDEPENDENTLY, APART FROM THE FINDINGS R ECORDED IN THE ASSESSMENT ORDER. THEREFORE, THE RELEVANT EVIDENCE IS ADMITTE D AS ADDITIONAL EVIDENCE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE AO FOR READJUDICATION OF THE PENALTY PROCEEDINGS AFTER DUE CONSIDERATION OF THE EVIDENCE BEING PLACED BY THE ASSESSEE ON RECORD. AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND PLACING EVIDENCE ON RECORD, THE AO WILL RE-ADJUDICATE THE ISSUE OF LEVY OF PENALTY OR OTHERWISE IN ACCORDANCE WITH LAW. WE DIRECT ACCORDINGLY. 6. FOR STATISTICAL PURPOSES, THIS APPEAL FILED BY T HE ASSESSEE IS TREATED AS ALLOWED IN THE AFORESAID MANNER. ITA NO.3944/DEL/2011 4 ORDER PRONOUNCED IN THE OPEN COURT DURING THE COUR SE OF HEARING ON 12.12.2011. SD/- SD/- (SHAMIM YAHYA ) (I.P. BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 12TH DECEMBER, 2011 GS COPY FORWARDED TO: 1. SHRI ABHINAV BINDRA, DEHRADUN. 2. ACIT, CIR.-2, DEHRADUN. 3. CIT(A)-II, DEHRADUN. 4. CIT 5. DR BY ORDER DY. REGISTRAR