Sukhpal Singh, Ghaziabad UP V. ITO ward-2(3), Ghaziabad

ITA 4096/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9636 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: FARAT KHAN
• Section: 271(1)(c); 274; 73; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 4095/DEL/2019 : ASSTT. YEAR : 2009-10 ITA NO. 4096/DEL/2019 : ASSTT. YEAR : 2009-10 SUKHPAL SINGH, KA-32, KAVI NAGAR, GHAZIABAD, U.P.-201002 VS INCOME TAX OFFICER, WARD-2(3), GHAZIABAD-201002 (APPELLANT) (RESPONDENT) PAN NO. CWZPS2745H ASSESSEE BY : SH. DEEPANSHU AGGARWAL, ADV. REVENUE BY : SH. FARAT KHAN, SR. DR DATE OF HEAR ING: 11 . 02 .20 2 1 DATE OF PRONOUNCEMENT: 12 .03 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E AGAINST THE ORDERS OF THE LD. CIT(A), GHAZIABAD DAT ED 27.03.2019 AND 28.03.2019. ITA NO. 4096/DEL/2019 A.Y. 2009-10 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE AO R ECEIVED INFORMATION FROM THE BANK AS PART OF ANNUAL INFORMA TION RETURN (AIR) THAT THE ASSESSEE HAS DEPOSITED CASH AMOUNTIN G TO RS.20,39,900/- IN HIS SAVINGS BANK ACCOUNT. 3. THE CASH DEPOSITS HAVE BEEN MADE ON 28.05.2008 O F RS.19,90,000/- AND RS.49,900/- ON 25.10.2008. ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 2 4. THE ASSESSEE EXPLAINED THAT THE AMOUNTS HAVE BEE N RECEIVED OUT OF THE SALE PROCEEDS OF THE LAND WHICH HAS BEEN SOLD AS UNDER: S.NO. DATE OF REGISTRY SALE CONSIDERATION SOLD BY 1 28.05.2008 RS. 85,000/- SHRI VIJAY SINGH 2 28.05.2008 RS. 81,000/- SHRI VIJAY SINGH 3 28.05.2008 RS. 65,000/- SHRI VIJAY SINGH 4 28.05.2008 RS. 1,26,000/- SHRI VIJAY SINGH 5 28.05.2008 RS. 1,28,000/- SHRI VIJAY SINGH 6 28.05.2008 RS. 1,26,000/- SHRI VIJAY SINGH 7 28.05.2008 RS. 63,000/- SHRI VIJAY SINGH 8 04.10.2008 RS. 1,01,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 9 05.07.2008 RS. 1,26,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 10 05.07.2008 RS. 1,26,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 11 05.07.2008 RS. 1,26,000/- SHRI BRIJESHWAR AND SHRI SUKHPAI 12 04.10.2008 RS. 1,45,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 13 04.10.2008 RS. 1,68,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 14 24.10.2008 RS. 1,68,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL 15 24.10.2008 RS. 1,20,000/- SHRI BRIJESHWAR AND SHRI SUKHPAL DETAILS OF PURCHASERS: S.NO. NAME OF SELLER AMOUNT DATE MT (AREA) PURCHASER 1 VIJAY PAL SINGH 85000.00 28.05.2008 56.02 SMT. RAM WATI W/O RAMJI LAL 2 VIJAY PAL SINGH 81000.00 28.05.2008 53.87 SMT. MAJU DEVI W/O VISHNU KUMAR 3 VIJAY PAL SINGH 65000.00 28.05.2008 43.10 SMT. SANGEETA W/O PRAVENDER KUMAR 4 VIJAY PAL SINGH 126000.00 28.05.2008 83.61 SMT. SANGEETA DUBEY W/O DEVI PRAKASH DUBEY 5 VIJAY PAL SINGH 128000.00 28.05.2008 84.86 CHANDER BHUSHAN MOHAN S/O HARBANS LAL MOHAN 6 VIJAY PAL SINGH 126000.00 28.05.2008 83.88 SMT. REKHA SHARMA W/O SH. RAJESH SHARMA 7 VIJAY PAL SINGH 63000.00 28.05.2008 41.80 SMT. MAYA DEVI W/O SH. TEJ PAL SINGH 8 BRIJESHWAR & SUKH PAL SINGH 101000.00 04.10.2008 50.16 SMT. VIRWATI W/O SH. KHARAN SINGH 9 BRIJESHWAR & SUKH PAL SINGH 126000.00 05.07.2008 83.88 MADAN SINGH S/O BEG RAJ ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 3 10 BRIJESHWAR & SUKH PAL SINGH 126000.00 05.07.2008 83.88 SMT. MEENAKASHI DEVI W/O YEATENDRA PAL SINGH 11 BRIJESHWAR & SUKH PAL SINGH 126000.00 05.07.2008 83.88 SMT. RAJ BALA S/O BHRAM PAL SINGH 12 BRIJESHWAR & SUKH PAL SINGH 145000.00 04.10.2008 72.30 SMT. REKHA DEVI W/O HARSARAN TYAGI 13 BRIJESHWAR & SUKH PAL SINGH 168000.00 04.10.2008 83.61 SMT. SANGEET TIWARI W/O SH. AJAY KUMAR TIWARI 14 BRIJESHWAR & SUKH PAL SINGH 120000.00 24.10.2008 59.92 RISHI KUMAR S/O RAGUBIR PRASAD 15 BRIJESHWAR & SUKH PAL SINGH 168000.00 24.10.2008 83.88 SMT. SAVITRI DEVI W/O DEEWAN SINGH TOTAL 1754000.0 1048.65 5. THE ASSESSEE EXPLAINED THAT, THE ASSESSEE ALONG WITH HIS BROTHERS SOLD THE INHERITED FAMILY PROPERTY AND ALS O EXPLAINED THAT THE CASH RECEIVED OUT OF SUCH SALE TRANSACTION HAS BEEN SENT TO VIJAY SINGH HIS BROTHER WHO IS AT PUNE BY W AY OF DEMAND DRAFT AND THE ASSESSEE HAS SUBMITTED THE BAN K STATEMENT. 6. WE FIND THAT THE TOTAL AMOUNT OF THE CASH RECEIV ED OUT OF SALE OF LAND REGISTERED DURING THE PERIOD FROM 28.0 5.2008 TO 24.10.2008 WAS TO THE TUNE OF RS.17,54,000/- WHEREA S THE CASH DEPOSITED ON 28.05.2008 WAS TO THE TUNE OF RS.19,90 ,000/-. HENCE, THE EXPLANATION OF THE ASSESSEE CANNOT BE CO NSIDERED AS SATISFACTORY. IN THE ABSENCE OF ANY EVIDENCES BROUG HT BEFORE US, WE HEREBY DECLINE TO INTERFERE WITH THE ORDER OF TH E LD. CIT (A). AS A RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSE D. ITA NO. 4095/DEL/2019 A.Y. 2009-10: 7. WE HAVE GONE THROUGH THE PENALTY ORDER DATED 01. 05.2007 WHICH IS REPRODUCED AS UNDER: ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 4 ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 5 8. AT THE OUTSET, THE LD. AR ARGUED THAT THE NOTICE ISSUED WAS BAD IN LAW AND VOID AB INITIO AS THE NOTICE PRIMA F ACIE DID NOT SATISFY THE CONDITION AS TO WHICH LIMB OF SECTION 2 71(1)(C) THE PENALTY HAS BEEN LEVIED EITHER CONCEALED INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. IT WAS ARGUED T HAT THAT IT IS ELEMENTARY THAT FOR ASSUMING VALID JURISDICTION TO IMPOSE PENALTY, THE ASSESSING OFFICER MUST, FIRST BE SATIS FIED, THOUGH PRIMA FACIE, THAT THE ASSESSEE HAS EITHER CONCEALE D INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AND ON THE BASIS OF SUCH SATISFACTION A SHOW CAUSE NOTICE HAS TO BE ISS UED UNDER SECTION 274 OF THE ACT TO THE ASSESSEE SPECIFYING T HE ADDITION/ DISALLOWANCE IN RESPECT OF WHICH PENALTY IS SOUGHT TO BE IMPOSED AND ALSO THE PRECISE CHARGE/ GROUND ON WHIC H PENALTY IS PROPOSED TO BE IMPOSED THEREON. IT WAS ARGUED TH AT NOTICE ISSUED UNDER SECTION 274 SHOULD SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I.E., WHETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INCOR RECT PARTICULARS OF INCOME. SENDING PRINTED FORM, WHERE BOTH THE GROUNDS MENTIONED IN SECTION 271 OF THE ACT ARE MEN TIONED, DOES NOT SATISFY REQUIREMENT OF LAW. 9. THE LD. DR ARGUED THAT THE ASSESSEE WAS WELL AWA RE OF THE REASON OF LEVY OF PENALTY AND HAS INDEED REPLIED TO THE SHOW CAUSE NOTICE. 10. WE HAVE GONE THROUGH THE PENALTY NOTICE ISSUED BY THE ASSESSING OFFICER AND FIND THAT THE PENALTY NOTICE DOES NOT SPECIFY WHETHER THE PENALTY WAS PROPOSED FOR CONCEA LMENT OF PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF PROVISIONS OF SECTION 271(1 )(C). ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 6 11. THE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY: 359 ITR 565 HELD THAT NOTICE UNDER SECTION 274 SHOULD SPECIFICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C) OF THE ACT, I.E., WH ETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INCORREC T PARTICULARS OF INCOME. SENDING PRINTED FORM WHERE ALL THE GROUN DS MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SA TISFY REQUIREMENT OF LAW. 12. THE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF PCIT VS. SAHARA INDIA LIFE INSURANCE CO. LTD. IN ITA NO. 475 OF 2019, REITERATED THAT NOTICE UNDER SECTION 274 SHOULD SPE CIFICALLY STATE THE GROUNDS ON WHICH PENALTY WAS SOUGHT TO BE IMPOS ED AS THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE HAS TO ME ET SPECIFICALLY. 13. THE AFORESAID PRINCIPLE HAS BEEN REITERATED IN THE IN THE CASE OF CIT VS. SSA'S EMERALD MEADOWS 73 TAXMANN.CO M 241 (KAR) [REVENUES SLP DISMISSED IN 242 TAXMAN 180] 14. IN THE PRESENT CASE, TOO, IN NOTICE DATED 01.05 .2017 UNDER SECTION 274 READ WITH SECTION 271 OF THE ACT, INITI ATED PENALTY AGAINST THE APPELLANT FOR ALLEGED CONCEALMENT OF I NCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME , THAT IS TO SAY, THE SPECIFIC DEFAULT WAS NOT SPECIFIED BY THE ASSESSING OFFICER IN THE NOTICE ISSUED. 15. HENCE, RESPECTFULLY FOLLOWING THE ORDER OF THE JURISDICTIONAL HIGH COURT, SINCE THE NOTICE U/S 274 HAS NOT BEEN S PECIFIED AS TO WHETHER PENALTY IS PROPOSED FOR ALLEGED CONCEAL MENT OF ITA NO. 4095 & 4096/DEL/2019 SUKHPAL SINGH 7 INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME, THE PENALTY LEVIED IS HEREBY OBLITERATED. 16. AS A RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 4096/DEL/2019 IS DISMISSED AND THE APPEAL OF THE AS SESSEE IN ITA NO. 4095/DEL/2019 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/03/2021. SD/- SD/- (BHAVNESH SAINI) (DR. B. R . R. KUMAR) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: 12/03/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR