Sh. Naresh Kumar, New Delhi V. JCIT, New Delhi

ITA 3946/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3217 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 04-05-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 09-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 3946/DEL/2014 AY: 20 01-02 SHRI NARESH KUMAR, VS J CIT, 231/1, POCKET D-12, RANGE-21, SECTOR-7, NEW DELHI. ROHINI. (PAN: ACQPL6085L) (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI RAJESH KUMAR, SR. DR DATE OF HEARING: 04.05.2017 DATE OF PRONOUNCEMENT: 04.05.2017 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER DATED 28.04.2014 WHEREIN THE LD. CIT(A) HAS C ONFIRMED IMPOSITION OF PENALTY OF RS. 2 LAKH IMPOSED U/S 271 D OF THE INCOME TAX ACT, 1961. 2. THE FACTS IN BRIEF ARE THAT INFORMATION HAD BEEN RECEIVED BY THE ITO WARD 21(1) FROM ITO, WARD 37(3), NEW DELHI THAT THE ASSESSEE HAD RECEIVED/TAKEN A LOAN OF RS. 2 LAKH IN CASH FROM MR. ASHOK ARORA DURING THE FINANCIAL YEAR 2000-01. ON A SHOW ITA 3946/DEL/2014 ASSESSMENT YEAR 2001-02 2 CAUSE NOTICE BEING SERVED ON THE ASSESSEE, THE ASSE SSEE APPEARED BEFORE THE INCOME TAX AUTHORITIES AND HIS STATEMENT WAS RECORDED WHEREIN THE ASSESSEE STATED THAT HE HAD TAKEN THE M ONEY FROM SHRI ASHOK ARORA RANGING FROM RS. 5,000/- TO RS. 20 ,000/- ON VARIOUS OCCASIONS AND THAT HE HAD RETURNED THE SAME ALONG WITH INTEREST. THE ASSESSEE ALSO DENIED EVER TAKING A L OAN OF AN AMOUNT EXCEEDING RS. 20,000/- IN CASH FROM SHRI ASH OK ARORA. THE ASSESSEE ALSO STATED THAT SHRI ASHOK ARORA HAD MADE HIM SIGN BLANK PAPERS WHICH HAD BEEN MISUSED. THE ASSE SSING OFFICER HAS RECORDED A FINDING IN PAGE 1 OF THE ORD ER PASSED U/S 271D THAT AS PER ANNEXURE IV FORWARDED BY THE ITO, WARD 37(3) THERE WAS A COPY OF RECEIPT STATING THAT A SUM OF R S. 2 LAKH WAS BEING TAKEN FROM SHRI ASHOK ARORA BY THE ASSESSEE A ND THAT THE ASSESSEE IS GIVING POST DATED CHEQUE OF RS. 3 LAKH FOR THE RETURN OF THE AFORESAID LOAN AMOUNT. THE ASSESSING OFFICE R PROCEEDED TO IMPOSE PENALTY OF RS. 2 LAKH ON THE ASSESSEE FOR FA ILURE TO COMPLY WITH THE PROVISIONS OF SECTION 269SS OF THE INCOME TAX ACT, 1961. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(A) WHO ALSO CONFIRMED THE SAME. NOW, THE ASSES SEE HAS ITA 3946/DEL/2014 ASSESSMENT YEAR 2001-02 3 APPROACHED THE ITAT AND HAS RAISED THE FOLLOWING GR OUNDS OF APPEAL: 1. THAT THE LEARNED ASSESSING AUTHORITY HAS GRO SSLY ERRED AND MISTAKEN UNDER LAW AND ACCORDING TO THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE IN IMPOSING PENALTY U/S 271D. 2. THAT ON THE MATTER OF FACT AND IN THE CIRCUMS TANCES OF THE CASE, PENALTY HAS BEEN IMPOSED BY THE LEARN ED ASSESSING AUTHORITY WITHOUT EXAMINING THE AUTHENTICITY AND RELEVANCY OF THE RECEIPT. 3. THAT ANY ADDITIONAL GROUND MAY BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. 4. NONE APPEARED FOR THE ASSESSEE. A PERUSAL OF TH E ORDER SHEET SHOWS THAT THE CASE WAS EARLIER FIXED FOR HEA RING ON 20 TH FEBRUARY, 2017 BUT EVEN ON THAT DATE, NONE HAD APPE ARED AND EVEN TODAY, WHEN THE MATTER WAS CALLED FOR HEARING, NONE WAS PRESENT. THEREFORE, WE PROCEED TO ADJUDICATE ON TH E APPEAL EX PARTE THE ASSESSEE. 5. LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED TH E ORDERS OF THE AUTHORITIES BELOW AND VEHEMENTLY ARGUED THAT THIS WAS A FIT CASE FOR IMPOSITION OF PENALTY U/S 271D OF THE ACT AND, THEREFORE, THE SAME SHOULD BE CONFIRMED. ITA 3946/DEL/2014 ASSESSMENT YEAR 2001-02 4 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND HAVE ALSO PERUSED THE MATERIAL ON RECORD. A PE RUSAL OF THE IMPUGNED ORDER PASSED BY THE CIT(A) SHOWS THAT THE PENALTY HAS BEEN CONFIRMED ON THE GROUND THAT THERE WAS A COPY OF RECEIPT STATING THAT A SUM OF RS. 2 LAKH HAD BEEN TAKEN BY THE ASSESSEE FROM SHRI ASHOK ARORA FOR WHICH THE ASSESSEE HAD GI VEN A POST DATED CHEQUE OF RS. 3 LAKH IN ADVANCE FOR THE RETUR N OF THE LOAN AMOUNT. LD. CIT(A) HAS NOTED THAT THE CASE FOR ACC EPTANCE OF LOAN OF RS. 2 LAKH IN CASH BY THE ASSESSEE WAS SUBS TANTIATED ON ACCOUNT OF PREPONDERANCE OF PROBABILITY. BEFORE TH E LD. CIT(A), THE ASSESSEE HAD TAKEN THE GROUND THAT THE PENALTY WAS IMPOSED BASED ON A FORGED RECEIPT CREATED BY SHRI ASHOK ARO RA BY PUTTING THE ASSESSEES FORGED SIGNATURE ON THE RECEIPT AND THAT NO SUCH LOAN OF RS. 2 LAKH IN CASH WAS EVER TAKEN BY THE AS SESSEE. HE HAS ALSO CONTENDED BEFORE THE LD. CIT(A) THAT A COM PLAINT U/S 138 R/W 142 OF THE NEGOTIABLE INSTRUMENT ACT AS WELL AS SECTION 420 OF INDIAN PENAL CODE WAS PENDING BEFORE THE COURT O F THE CHIEF METROPOLITAN MAGISTRATE, DELHI IN COMPLAINT NO. T-1 5/2002 WHICH HAD SUBSEQUENTLY BEEN DECIDED IN FAVOUR OF TH E ASSESSEE, WHICH PROVED THAT THE RECEIPT OF RS. 2 LAKH WAS FOR GED/FABRICATED. ON THIS, THE LD. CIT(A) HAS OBSERVED THAT IN ABSENC E OF THE ITA 3946/DEL/2014 ASSESSMENT YEAR 2001-02 5 COMPLETE TESTIMONY OF THE COMPLAINANT SHRI ASHOK AR ORA THAT THE ASSESSEE (ACCUSED) HAD BEEN ACQUITTED OF THE OFFENC E ALLEGED AGAINST HIM, IT COULD NOT BE INFERRED THAT THE RECE IPT OF RS. 2 LAKH WAS A FORGED RECEIPT. 7. ON AN OVERALL FACTUAL MATRIX OF THE CASE, WE DEE M IT EXPEDIENT IN THE INTEREST OF JUSTICE THAT THE ASSES SEE BE AFFORDED ANOTHER OPPORTUNITY TO PRODUCE RELEVANT EVIDENCES I N HIS FAVOUR BEFORE THE LD. CIT(A). THEREFORE, WITHOUT COMMENTI NG ON THE MERITS OF THE CASE AT THIS JUNCTURE, WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) TO RE-EXAMINE THE ISSUE IN THE LI GHT OF THE EVIDENCES/EXPLANATIONS TO BE FILED BY THE ASSESSEE IN SUPPORT OF HIS CASE AFTER AFFORDING DUE OPPORTUNITY TO THE ASS ESSEE. WE ALSO ADD THAT SHOULD THE ASSESSEE FAIL TO FURNISH THE RE QUISITE EVIDENCES OR APPEAR WITHOUT JUSTIFIABLE REASON BEFO RE THE LD. CIT(A) ON THE APPOINTED DATE, THE LD. CIT(A) WILL B E AT LIBERTY TO DRAW A NEGATIVE INFERENCE AND ADJUDICATE ACCORDINGL Y. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA 3946/DEL/2014 ASSESSMENT YEAR 2001-02 6 ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MAY, 2017. SD/- SD/- (R.K. PANDA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: 4TH MAY, 2017 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR