ACIT, New Delhi V. Sh. Devki Nandan Bansal, New Delhi

ITA 400/DEL/2014

• Counselvise Citation: 40020114 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: RANO JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC NEW DELHI BEFORE SHRI G.C. GUPTA, VICE PRESIDENT ITA NO: 400/DEL/2014 AY : - 2009-10 ACIT VS. DEVKI NANDAN BANSAL CIRCLE-13, SHOP NO. 2, SARBATI BUILDING NEW DELHI. JWALA HERI MARKET, PASCHIM VIHAR, NEW DELHI 110 063 (PAN AAFPB3422J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. JAISWAL, SR. DR RESPONDENT BY : M.S. RANO JAIN, CA DATE OF HEARING : 11.6.2015 DATE OF PRONOUNCEMENT :16.7. 2015 O R D E R THIS APPEAL BY THE REVENUE FOR THE ASSESSM ENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). THE GROUNDS OF APP EAL OF THE REVENUE ARE AS UNDER :- 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE PENALTY U/S 271AAA OF RS. 6,40,000/ - IMPOSED BY AO ON ACCOUNT OF UNDISCLOSED INCOME WITHOUT APPRECIATING THE FACT THAT DURING THE COURSE OF SEARCH SHRI D.N. BANSAL HAD NOT ADMITTED RS. 64,00,000/- AS HIS UNDISCLOSED INCOME. 2. LD. DR SUBMITTED THAT THERE WAS A SEARCH OPER ATION IN THE PREMISES OF THE ASSESSEE AND THE ASSESSEE COULD NOT EXPLAIN THE SOU RCE OF RS. 64 LACS FOUND DURING THE COURSE OF SEARCH AND THE SAME WAS NOT SURRENDE RED AT THE TIME OF SEARCH ITSELF AND THEREFORE THE PENALTY LEVIED U/S 271AAA OF THE ACT AT RS. 6,40,000/- BY THE AO ITA NO. 400/DEL/2014 ACIT VS. DEVK I NANDAN BANSAL 2 WAS JUSTIFIED. HE SUBMITTED THAT THE ASSESSEE HAS S URRENDERED THE AMOUNT OF UNDISCLOSED INCOME OF RS. 64 LACS ONLY IN HIS RETUR N OF INCOME FILED WITH THE DEPARTMENT. HE REFERRED TO THE RELEVANT PORTION OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. HE SUBMITTED THAT THE A SSESSEE HAS NOT EXPLAINED THE MANNER OF EARNING THE UNDISCLOSED INCOME AND COULD NOT SUBSTANTIATE THE SAME, WHICH IS A STATUTORY REQUIREMENT TO AVOID THE IMPOS ITION OF PENALTY U/S 271AAA OF THE ACT. HE RELIED ON THE ORDER OF THE AO. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF CASH FOUND AS HAVING EARNED IN REAL ESTAT E TRANSACTION WHICH WERE NOT ACCOUNTED FOR AND THEREFORE THE AMOUNT OF RS. 64 L ACS WAS AGREED TO BE INCLUDED IN THE RETURN OF INCOME TO BE FILED. SHE SUBMITTED THA T THE AMOUNT WAS IN FACT INCLUDED BY THE ASSESSEE IN THE RETURN OF INCOME FILED AFTER THE SEARCH AND THE TAX DUE THEREON WERE FULLY PAID. HE SUBMITTED THAT NO SPECI FIC QUESTION REGARDING THE MANNER OF EARNING THE UNDISCLOSED INCOME WAS EVER P UT TO THE ASSESSEE. DURING THE COURSE OF SEARCH ASSESSEE HAS TRIED TO GIVE APPROP RIATE ANSWERS TO THE BEST OF HIS ABILITY AND KNOWLEDGE TO THE QUESTIONS PUT TO HIM. SHE RELIED ON THE SERIES OF DECISION :- 1. NEERAJ SINGHAL VS. ACIT, ITA NO. 337/DEL/2013, DAT ED 24 TH JUNE, 2013 2. SUDHA GUPTA, NEW DELHI VERSUS DCIT, CENTRAL, ITA 54 45/DEL/2012, DATED 22 ND AUGUST, 2014 3. DCIT VERSUS RIVAA EXPORT LTD. ITA NO. 2718 & 2719/A HD/2012 DATED 7 TH JUNE, 2013 4. LATE SHRI SUDHIR JAIN (THROUGH SON & LEGAL HEIR SHR I RAHUL JAIN) VERSUS ACIT, NEW DELHI, 551/DEL/2013, DATED 30.4.2013 5. DCIT, CENT. CIR-3, SURAT VERSUS SMT. SULOCHANADEVI A. AGARWAL, 1052/AHD/2012, DATED 20.7.2012 ITA NO. 400/DEL/2014 ACIT VS. DEVK I NANDAN BANSAL 3 6. COMMISSIONER OF INCOME TAX VS. SURESH CHANDRA MITTA L (2001) 251 ITR 9 (SC) 7. CIT VS. SURAJ BHAN (2007) 294 ITR 481 (P & H) 3.1 SHE SUBMITTED THAT THE CIT(A) HAS PASSED A S PEAKING ORDER ON THE ISSUE AND HAS RELIED ON THE SAME. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AN D HAVE PERUSED THE ORDER OF THE AO AND CIT(A). I FIND THAT THE CIT(A) HAS PASSED A WEL L REASONED SPEAKING ORDER ON THE ISSUE BEFORE HIM. THE ASSESSEE AFTER BEING CONFRONT ED WITH THE QUESTION REGARDING THE SOURCE OF CASH FOUND, HAS REPLIED THAT IT HAS B EEN EARNED IN REAL ESTATE TRANSACTIONS AND THAT THE TRANSACTIONS WERE NOT ACC OUNTED FOR AND AGREED TO INCLUDE IT IN THE RETURN OF INCOME TO BE FILED. THE ASSESSE E IN FACT HAS INCLUDED THE AMOUNT OF RS. 64 LACS AS INCOME IN THE RETURN OF INCOME FI LED AFTER THE SEARCH AND TAX DUE THEREON WERE FULLY PAID. WITH REGARD TO THE ISSUE T HAT WHETHER THE MANNER OF EARNING THE UNDISCLOSED INCOME WAS SUBSTANTIATED, T HE CIT(A) HAS RECORDED A FINDING THAT THE ASSESSEE WAS NEVER QUESTIONED BY D RAWING HIS ATTENTION TO THE PROVISIONS CONTAINED IN SECTION 271(1)(C) OR SECTIO N 271AAA. THE CIT(A) HAS RECORDED THAT ASSESSEE HAS TRIED TO GIVE APPROPRIAT E ANSWERS TO THE BEST OF HIS ABILITY AND KNOWLEDGE TO THE QUESTIONS PUT TO HIM A ND THAT HAD HE BEEN EXPRESSLY MADE AWARE OF THE PROVISIONS OF SECTION 271AAA, HE COULD HAVE TRIED TO FURNISH SOME MORE EVIDENCE OR PROPER EXPLANATION. THE CIT( A) HAS RECORDED A FINDING THAT NO SUCH ATTEMPT SEEMS TO HAVE BEEN MADE DURING THE COURSE OF SEARCH OR DURING THE ASSESSMENT PROCEEDINGS. THE CASE LAW CITED BY T HE CIT(A) AS WELL AS THE LD. COUNSEL FOR THE ASSESSEE SUPPORTS THE CASE OF THE A SSESSEE. I AM OF THE CONSIDERED VIEW THAT THE REVENUE COULD NOT DERIVE BENEFIT OUT OF ITS OWN FAILURE TO PUT PROPER ITA NO. 400/DEL/2014 ACIT VS. DEVK I NANDAN BANSAL 4 QUESTION DURING THE COURSE OF SEARCH TO FIND OUT TH E MANNER OF EARNING THE UNDISCLOSED INCOME FROM THE ASSESSEE. THE CONDUCT O F THE ASSESSEE WAS BONAFIDE. IN THESE FACTS OF THE CASE, I AM OF THE VIEW THAT T HERE IS NO MISTAKE IN THE ORDER OF THE CIT(A) IN HOLDING THAT THE PENALTY COULD NOT BE LEGALLY SUSTAINED AND IN CANCELLING THE SAME. ACCORDINGLY THE ORDER OF THE C IT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUNDS OF APPEAL OF REVENUE IS DISMISSED. 5. IN THE RESULT APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.7.201 5. SD/- (G.C. GUPTA) VICE PRES IDENT DATED: THE 16.7.2015 *VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 11.6.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 12.6.2015 3. DRAFT PLACED BEFORE THE SECOND MEMBER ITA NO. 400/DEL/2014 ACIT VS. DEVK I NANDAN BANSAL 5 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER