Neeraj Singal, New Delhi V. CIT(A)- 23, New Delhi

ITA 4038/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5166 (ITAT-DELHI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAMITA M BISWAS
• Keywords: Bogus purchase
• Section: 271(1)(c); 153A; 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE HONBLE VICE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NOS.4037, 4038, 4039 & 4040/DEL./2018 (ASSESSMENT YEAR : 2010-11, 2011-12, 2012-13 & 2013 -14) SHRI NEERAJ SINGAL, VS. ACIT, CENTRAL CIRCLE 3, W 29, GREATER KAILASH PART 2, NEW DELHI. NEW DELHI 110 048. (PAN :ANRPS7986B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI KUMAR, CA SHRI ADITYA KUMAR, CA SHRI RAHUL CHAURASIYA, CA REVENUE BY : MS. PRAMITA M. BISWAS, CIT DR DATE OF HEARING : 16.05.2019 DATE OF ORDER : 28.05.2019 O R D E R PER BENCH : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN ALL THE AFORESAID APPEALS, THE SAME ARE BEING DISPOSED OFF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. APPELLANT, SHRI NEERAJ SINGAL (HEREINAFTER REFER RED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO S ET ASIDE THE IMPUGNED ORDER ALL DATED 05.03.2018 PASSED BY THE COMMISSION ER OF INCOME-TAX (APPEALS)-23, NEW DELHI, AFFIRMING THE PENALTY ORDE RS PASSED U/S ITA NOS.4037 TO 4040/DEL/2018 2 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT T HE ACT), QUA THE ASSESSMENT YEARS 2010-11, 2011-12, 2012-13 & 2013-1 4 ON THE IDENTICAL GROUNDS, EXCEPT THE DIFFERENCE IN PENALTY AMOUNT, I NTER ALIA THAT :- 1. THAT THE ORDER DATED 05-03-2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-23, NEW DELHI IS AGAINST LAW AND FACTS ON THE FILE AS HE WAS NOT JUS TIFIED TO A PENALTY (RS.31,87,58,220/-, RS.45,13,70,205, RS.25,33,95,450/- & RS.25,73,62,083/- FOR AYS 2010- 11, 2011-12, 2012-13 & 2013-14 RESPECTIVELY) U/S 271 (1 )(C) OF THE INCOME-TAX ACT, 1961, WITHOUT CONSIDERING THE F ACTS AND CIRCUMSTANCES OF THE CASE AND THE LEGAL POSITION IN AS MUCH AS NO PENALTY IS EXIGIBLE IN THE FACTS & CIRCUMSTAN CES OF THE CASE. 2. THAT THE ORDER DATED 05-03-2018 PASSED U/S 271 ( 1)(C) OF THE INCOME-TAX ACT, 1961 COMMISSIONER OF INCOME TAX (APPEALS)-23, NEW DELHI IS AGAINST LAW AND FACTS ON THE FILE AS HE WAS NOT JUSTIFIED TO IMPOSE A PENALTY (RS.31,87,58,220/-, RS.45,13,70,205, RS.25,33,95,45 0/- & RS.25,73,62,083/- FOR AYS 2010-11, 2011-12, 2012-13 & 2013-14 RESPECTIVELY) WITHOUT SPECIFYING THE CHARGE AGAINST WHICH THE PENALTY WAS BEING IMPOSED. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED UNDER SECTION 153A OF THE ACT READ WITH SECTION 143 (3) A SSESSING THE INCOME OF THE ASSESSEE AT RS.126,44,98,755/- FOR AY 2010-1 1 BY MAKING ADDITION ON ACCOUNT OF DISALLOWANCE OF BOGUS LONG T ERM CAPITAL GAINS (LTCG) AND ON ACCOUNT OF COMMISSION EXPENSES @ 6% O F NET GAIN AND ON ACCOUNT OF BOGUS PURCHASE OF JEWELLERY, AO PROCE EDED TO INITIATE THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR CO NCEALMENT OF INCOME. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, A O PROCEEDED TO LEVY PENALTY OF RS.31,87,58,220/-, RS.45,13,70,205, RS. 25,33,95,450/- & ITA NOS.4037 TO 4040/DEL/2018 3 RS.25,73,62,083/- FOR AYS 2010-11, 2011-12, 2012-13 & 2013-14 RESPECTIVELY. 4. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS CONFIRMED THE PENALTIES LEVIED BY THE A O BY DISMISSING THE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 6. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT ADDITIONS MADE IN ALL THE CASES U/S 6 8 OF THE ACT HAVE SINCE BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.1485 TO 1487/DEL/2018 FOR AYS 2010-11 TO 2012-13 VIDE ORDER DATED 31.10.2018 AND ITA NOS.1488 TO 1490/DEL/2018 FOR AYS 2013-14 TO 2015-16 VIDE ORDER DATED 10.01.2019 AND AS SUCH, PENALTIES LEVIED ARE NOT SUSTAINABLE AND BROUGHT ON RECORD THE COPY OF T HE ORDER OF THE TRIBUNAL DATED 31.10.2018 & 10.01.2019 (SUPRA). 7. UNDISPUTEDLY, THE COORDINATE BENCH OF THE TRIBUN AL VIDE ORDERS DATED 31.10.2018 & 10.01.2019 (SUPRA) DELETED THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF BOGUS LONG TERM CA PITAL GAINS (LTCG) AND ON ACCOUNT OF COMMISSION EXPENSES @ 6% O F NET GAIN AND ON ACCOUNT OF BOGUS PURCHASE OF JEWELLERY. IT IS S ETTLED PRINCIPLE OF LAW ITA NOS.4037 TO 4040/DEL/2018 4 THAT WHEN ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, IS NOT IN EXISTE NCE HAVING BEEN DELETED BY THE TRIBUNAL, PENALTY LEVIED BY THE AO A ND CONFIRMED BY THE LD. CIT (A) IS ALSO NOT SUSTAINABLE. RELIANCE IS P LACED ON THE DECISION RENDERED BY HONBLE APEX COURT IN CASE CITED AS K.C. BUILDERS & ANR VS. ACIT 265 ITR 562 (SC) WHEREIN IT IS HELD AS UNDER : WHEN THE ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED HA VE BEEN DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING T HE PENALTY FOR CONCEALMENT AND IN SUCH CASE, NO PENALTY CAN SU RVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. 8. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, PENALT IES LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT (A) IN THE AFORESAI D CASES OF THE ASSESSEE QUA AYS 2010-11, 2011-12, 2012-13 & 2013-1 4 ARE ORDERED TO BE DELETED. CONSEQUENTLY, ALL THE APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 28 TH DAY OF MAY, 2019. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBE R DATED THE 28 TH DAY OF MAY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-23, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.