Chander Jain, New Delhi V. DCIT, Circle-63(1), New Delhi

ITA 4144/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5571 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Income from undisclosed sources; Reason to believe; Reassessment proceedings
• Section: 271(1)(c); 143(3); 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. SRIVASTAVA, JUDICIAL MEMBER ITA NO. 745/DEL/2014 ASSESSMENT YEAR: 2009-10 CHANDER JAIN S/O LATE SH. DAL CHAND JAIN, 4682, GALI UMRAO SINGH, PAHARI DHEERAJ, NEW DELHI. PAN NO. ABZPJ6595M VS ACIT CIRCLE 39(1) NEW DELHI. APPELLANT RESPONDENT & ITA NO. 4144/DEL/2018 ASSESSMENT YEAR: 2009-10 CHANDER JAIN S/O LATE SH. DAL CHAND JAIN, 4682, GALI UMRAO SINGH, PAHARI DHEERAJ, NEW DELHI. PAN NO. ABZPJ6595M VS DCIT CIRCLE 63(1) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI SALIL KAPOOR, SR. ADV. SH. SUMIT LAL CHANDANI, ADV. MS. ANANYA KAPOOR, ADV. SHRI SIDHARTH KANWAN, ADV. REVENUE BY MS. ASHIMA NEB, SR. DR DATE OF HEARING 30.05.2019 DATE OF PRONOUNCEMENT 03.06.2019 2 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 ORDER PER SHRI N.K. BILLAIYA, A.M. THESE ARE TWO SEPARATE APPEALS BY THE ASSESSEE PREF ERRED AGAINST TWO SEPARATE ORDERS OF THE CIT(APPEALS)-28, NEW DELHI DATED 26.09.2013 AND CIT(APPEALS)-34, NEW DELHI DAT ED 28.03.2018, PERTAINING TO AY 2009-10 RESPECTIVELY. 2. ITA NO. 745/DEL/2014 RELATES TO THE QUANTUM ADDI TION AND ITA NO. 4144/DEL/2018 RELATES TO THE LEVY OF PENALT Y U/S 271(1)(C) OF THE ACT IN RESPECT OF QUANTUM ADDITION. 3. BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE. 4. FIRST WE WILL TAKE ITA NO. 745/DEL/2014. 4.1 THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 36,64,857/- MADE U/S 68 OF THE ACT. 5. VIDE APPLICATION DATED 07.09.2017 THE ASSESSEE R AISED ADDITIONAL GROUNDS BY WHICH THE NOTICE ISSUED U/S 1 48 WAS CHALLENGED ON THE GROUND THAT THE AO HAS ERRED IN A SSUMING THE JURISDICTION FOR REASSESSMENT. 6. SINCE, THE ADDITIONAL GROUND GOES TO THE ROOT OF THE MATTER WE DECIDED TO PROCEED TO ADJUDICATE THE SAME FIRST. T HE DR STRONGLY OBJECTED TO THE ADDITIONAL GROUNDS RAISED BY THE AS SESSEE STATING THAT THE SAME WAS NOT RAISED BEFORE THE LOWER AUTHO RITIES. WE DO 3 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 NOT FIND ANY FORCE IN THE OBJECTION OF THE DR. THE HONBLE SUPREME COURT IN THE CASE OF NTPC 229 ITR 383 HAS C LEARLY LAID DOWN THAT A POINT OF LAW WHICH REQUIRES NO VERIFICA TION OF FACT CAN BE RAISED AT ANY STAGE. 7. THE ADDITIONAL GROUND IS ADMITTED. FACTS ON REC ORD SHOW THAT THE ORIGINAL RETURN WAS FILED ON 18.01.2010 DE CLARING A TOTAL INCOME OF RS. 1,56,038/- WHICH WAS PROCESSED U/S 14 3(1) OF THE ACT. SUBSEQUENTLY, A NOTICE U/S 148 OF THE ACT WAS ISSUED ON 18.03.2012. THE REASONS FOR REOPENING THE ASSESSME NT READ AS UNDER: ANNEXURE-A SH. CHANDER JAIN, HOUSE NO. 4682, GALI UMRAO SINGH, PAHARI DHIRAJ, DELHI 110 006. A.Y. 2009-10 RECORDING OF THE REASONS FOR INITIATING PROCEEDINGS U/S 147/148 OF THE INCOME-TAX ACT, 1961 AND FOR OBTAINING APPROVAL OF THE ADDITIONAL COMMISSIONER OF INCOME-TAX . A LETTER NO. 13474 DATED 04.01.2012 HAS BEEN RECEIV ED FROM ADDL. CIT, COODN. WITH REGARD NON-PAN AIR DATA FOR F.Y. 2 008-09 UTILIZATION OF INFORMATION MENTIONED IN ANNUAL INFO RMATION RETURN ENCLOSING THEREWITH INSTRUCTION REGARDING UTILIZATI ON OF AIR INFORMATION. AS PER PARA IV OF THE INSTRUCTION, W HERE NO RETURN HAS BEEN FILED EITHER PRIOR TO OR AFTER ISSUE OF QUERY LETTER/NOTICE U/S 142(1) OR WHERE THE TIME FOR ISSUANCE OF NOTICE U/S 143(2) HAS EXPIRED, THE JURISDICTIONAL ASSESSING OFFICER MAY C ONSIDER ISSUANCE OF NOTICE U/S 148 AS PER LAW AFTER RECORDING REASON S THEREFORE, IF HE/SHE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPE D ASSESSMENT. IN THIS CASE, QUERY LETTER DATED 11.02.2012 AND 25. 01.2012 HAVE ALREADY BEEN SENT BY THIS OFFICE TO THE ASSESSEE RE QUIRING HIM TO INTIMATE THIS OFFICE HIS PAN, STATUS OF FILING OF R ETURN AND IF RETURN HAS ALREADY FILED ACKNOWLEDGEMENT NUMBER, AND DATE OF FILING, AND INCOME TAX AUTHORITY WITH WHOM RETURN HAS BEEN FILE D HAS TO BE 4 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 INTIMATED TO THE JURISDICTIONAL ASSESSING OFFICER. IN RESPONSE TO NO REPLY HAS BEEN RECEIVED FROM THE ASSESSEE TILL DATE . AS PER NON-PAN AIR INFORMATION, DURING THE FY 2008- 09, THE ABOVE MENTIONED ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS. 36,64,857/- IN HIS SAVING BANK ACCOUNT. SINCE, THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION REGARDING THE SOURCE OF ABOVE CASH DEPOSITS DESPITE GETTING REPEATED OPPORTUNITIES, HE NCE, I HAVE REASONS TO BELIEVE THAT THE SOURCE OF ABOVE CASH DE POSITS IS INCOME FROM UNDISCLOSED SOURCES. THUS, INCOME TO THE TUNE OF RS. 36,64,857/- CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T WITHIN THE PURVIEW OF SECTION 147 OF THE I.T. NOTICE U/S 148 F OR THE AY 2009-10 IS BEING ISSUED. SD/- (SHIVANI BANSAL) ACIT, CIRCLE-39(1) NEW DELHI. 8. A PERUSAL OF THE AFOREMENTIONED REASONS SHOW THA T THERE IS A REFERENCE OF QUERY LETTER DATED 11.01.2012 AND 25.0 1.2012. THERE IS ALSO A REFERENCE THAT NO REPLY HAS BEEN RECEIVED FROM THE ASSESSEE TILL DATE. THEREAFTER, THE AO OBSERVED TH AT SINCE CASH WAS FOUND TO BE DEPOSITED IN THE SAVINGS BANK ACCOU NT. HE HAD REASONS TO BELIEVE THAT THE SOURCE OF THE ABOVE CAS H DEPOSITS IS INCOME FROM UNDISCLOSED SOURCES AND, ACCORDINGLY, R EASSESSMENT PROCEEDINGS WERE INITIATED. 9. IN OUR CONSIDERED VIEW, THE AFOREMENTIONED REASO NS ARE DEVOID OF ANY APPLICATION OF MIND SINCE THE AO COMPLETELY IGNORED THE FACT THAT THE RETURN FOR THE YEAR UNDER CONSIDE RATION WAS ALREADY FILED ON 18.01.2010. THE AO FURTHER IGNORE D THE FACT THAT VIDE LETTER DATED 24.02.2012 THE ASSESSEE HAS EXPLA INED THAT HE IS A REGULAR ASSESSEE AND PRODUCED THE COPY OF INCOME- TAX RETURN FILED IN THE OFFICE OF ITO, WARD 39(2). THESE FACT S CAN BE GATHERED 5 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 FROM THE BODY OF THE ASSESSMENT ORDER ITSELF IN THE FIRST PARA ON PAGE 1 OF THE ASSESSMENT ORDER. 10. THE HONBLE HIGH COURT OF GUJARAT IN THE CASE O F SUNRISE EDUCATION TRUST, 92 TAXMANN.COM 74 HAS OBSERVED AS UNDER: 5. HAVING HEARD LD. COUNSEL FOR THE PARTIES AND H AVING PERUSED THE DOCUMENTS ON RECORD, IT COULD BE STRAIG HTWAY SEEN THAT THE ASSESSING OFFICER IN THE REASONS RECO RDED, PROCEEDED ON THE ERRONEOUS FOOTING THAT THE ASSESSE E HAD NOT FILED RETURN AT ALL. THE FIRST PREMISE FOR ISS UING THE NOTICE WAS THUS FACTUALLY INCORRECT. IT IS NOW NOT DISPUTED BY THE REVENUE THAT THE ASSESSEE DID FILE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WHICH WAS DULY ACKNOWLEDGED BY THE DEPARTMENT. THE ENTIRE REASONI NG THUS PROCEEDED ON THE WRONG PREMISE THAT THE ASSESS EE HAD NEVER FIELD THE RETURN. THIS ITSELF WOULD BE S UFFICIENT TO ANNUL THE NOTICE OF REOPENING THE ASSESSMENT. 11. ON IDENTICAL SET OF FACTS, THE COORDINATE BENCH IN THE CASE OF ASHWANI KUMAR IN ITA NO. 129/ASR/2015 ORDER DATED 2 3.02.2016 HAS HELD AS UNDER: 7. THE FACTS ARE NOT DISPUTED. A BARE PERUSAL OF THE REASONS RECORDED FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT, SHOWS THAT THE ONLY MATERIAL AVAILABLE BEFORE THE A O WAS THE AIR INFORMATION OF THE ASSESSEE HAVING DEPOSITE D AN AMOUNT OF RS. 11.60 LAKHS IN HIS SAVINGS BANK ACCOU NT. REMARKABLY, THE REASONS RECORDED DID NOT EVEN MENTI ON THE BANK IN WHICH SUCH SAVINGS BANK ACCOUNT WAS MAINTAINED. THE ASSESSEE, AS AVAILABLE FROM THE FI RST PAGE OF THE ASSESSMENT ORDER, WAS ISSUED A NOTICE U /S 148 OF THE ACT, IN PURSUANCE TO THE AFORESAID REASO NS. THE ASSESSMENT ORDER U/S 143(3) OF THE ACT IS DATED 25.03.2013. THE ASSESSEE HAD FILED THE RETURN OF I NCOME ON 05.10.2005 AND IT HAD BEEN STATED IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT THAT THIS RETURN BE TREAT ED AS HAVING BEEN FILED IN RESPONSE TO THIS NOTICE. IN BIR 6 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 BAHADUR SINGH SIJWALI (SUPRA), LIKE IN THE PRESENT CASE, THE REASONS RECORDED INDICATED THAT CASH DEPOSITS H AD BEEN MADE IN THE BANK ACCOUNT OF THE ASSESSEE. THE TRIBUNAL HELD THAT THE MERE FACT THAT THE DEPOSITS HAVING BEEN MADE IN A BANK ACCOUNT DOES NOT INDICATE THAT THESE DEPOSITS CONSTITUTE AN INCOME WHICH HAS ESCAPED ASSESSMENT. IT WAS OBSERVED THAT THE REASONS RECOR DED DID NOT MAKE OUT A CASE THAT THE ASSESSEE WAS ENGAG ED IN SOME BUSINESS AND THE INCOME FROM SUCH A BUSINESS H AD NOT BEEN RETURNED BY THE ASSESSEE. IN THE CASE AT HAND ALSO, THE REASONS RECORDED DO NOT CONTAIN ANY SUCH RECITAL. THE TRIBUNAL HELD THAT THE FACTUM PER SE, OF DEPOSI TS IN THE BANK ACCOUNT OF THE ASSESSEE COULD NOT BE MADE THE BASIS FOR HOLDING THE VIEW THAT INCOME HAD ESCAPED ASSESS MENT, OVER-LOOKING THAT THE SOURCES OF THE DEPOSITS NEED NOT NECESSARILY BE THE INCOME OF THE ASSESSEE; AND THAT AS SUCH, THE REASONS RECORDED WERE NOT SUFFICIENT TO B ELIEVE ESCAPEMENT OF INCOME; THAT RATHER, THEY WERE REASON S TO SUSPECT ESCAPEMENT OF INCOME, WHICH WAS NOT ENOUGH FOR ISSUANCE OF A NOTICE U/S 148 OF THE ACT. 12. A SIMILAR VIEW WAS TAKEN BY THE DELHI BENCH IN THE CASE OF BAHADUR SINGH SIJWALI 53 TAXMANN.COM 366. THE RELE VANT FINDINGS READ AS UNDER: 8. LET US, IN THE LIGHT OF THIS LEGAL POSITION, RE VERT TO THE FACTS OF THE CASE BEFORE US. ALL THAT THE REASONS RECORDED FOR REOPENING INDICATE IS THAT CASH DEPOSITS AGGREG ATING TO RS. 10,24,100/- HAVE BEEN MADE IN THE BANK ACCOUNT OF THE ASSESSEE, BUT THE MERE FACT THAT THESE DEPOSITS HAVE BEEN MADE IN A BANK ACCOUNT DOES NOT INDICATE THAT THESE DEPOSITS CONSTITUTE AN INCOME WHICH HAS ESCAPED ASSESSMENT. THE REASONS RECORDED FOR REOPENING THE ASSESSMENT DO NOT MAKE OUT A CASE THAT THE ASSESSEE WAS ENGAGED IN SOME BUSINESS AND THE INCOME FROM SUCH A BUSINESS HAS NOT BEEN RETURNED BY THE ASSESSEE. AS WE DO NOT HAVE THE LIBERTY TO EXAMINE THESE REASONS ON THE BASIS OF ANY OTHER MATERIAL OR FACT, OTHER THAN THE FACTS SET OUT IN THE REASONS SO RECORDED, IT IS NOT OPEN TO U S TO DEAL 7 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 WITH THE QUESTION AS TO WHETHER THE ASSESSEE COULD BE SAID TO BE ENGAGED IN ANY BUSINESS; ALL THAT IS TO BE EXAMINED IS WHETHER THE FACT OF THE DEPOSITS, PER S E, IN THE BANK ACCOUNT OF THE ASSESSEE COULD BE BASIS OF HOLD ING THE VIEW THAT THE INCOME HAS ESCAPED ASSESSMENT. THE ANSWER, IN OUR HUMBLE UNDERSTANDING, IS IN NEGATIVE . THE ASSESSING OFFICER HAS OPINED THAT AN INCOME OF RS. 10,24,100/- HAS ESCAPED ASSESSMENT OF INCOME BECAUS E THE ASSESSEE HAS RS. 10,24,100/- IN HIS BANK ACCOUN T BUT THEN SUCH AN OPINION PROCEEDS ON THE FALLACIOUS ASSUMPTION THAT THE BANK DEPOSITS CONSTITUTE UNDISC LOSED INCOME, AND OVERLOOKS THE FACT THAT THE SOURCES OF DEPOSIT NEED NOT NECESSARILY BE INCOME OF THE ASSESSEE. OF COURSE, IT MAY BE DESIRABLE, FROM THE POINT OF VIEW OF REVENUE AUTHORITIES, TO EXAMINE THE MATTER IN DETAI L, BUT THEN REASSESSMENT PROCEEDINGS CANNOT BE RESORTED TO ONLY TO EXAMINE THE FACTS OF A CASE, NO MATTER HOW DESIR ABLE THAT BE, UNLESS THERE IS A REASON TO BELIEVE, RATHE R THAN SUSPECT, THAT AN INCOME HAS ESCAPED ASSESSMENT. 9. LD. DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO A NUMBER OF JUDICIAL PRECEDENTS IN SUPPORT OF HER STA ND THAT EVEN DEPOSITS IN THE BANK ACCOUNT, AS HAVING COME T O THE NOTICE OF THE ASSESSING OFFICER THROUGH AIR, CAN BE REASON ENOUGH FOR HOLDING THE BELIEF THAT INCOME HAS ESCAP ED ASSESSMENT. SHE HAS RELIED UPON THE DECISIONS IN T HE CASES OF CIT VS. NOVA PROMOTERS & FINLEASE (P) LTD. [2012] 342 ITR 169/206 TAXMANN 207/18 TAXMANN.COM 217 (DELHI) BUT THEN NONE OF THE QUESTIONS BEFORE HONB LE HIGH COURT HAD ANYTHING TO DO WITH REOPENING OF ASSESSME NT AND THIS DECISION CANNOT, THEREFORE, BE TAKEN AS AN AUTHORITY ON THE LEGAL ISSUE WHICH DID NOT EVEN COM E UP FOR SPECIFIC ADJUDICATION BEFORE THEIR LORDSHIPS. AS F OR HER RELIANCE ON HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF PHOOL CHAND BAJRANG LAL VS. ITO [1993] 203 ITR 4 56/69 TAXMAN 627, THAT WAS CASE IN WHICH THEIR LORDSHIPS CONCLUDED THAT THE AO RIGHTLY INITIATED THE REASSE SSMENT PROCEEDINGS ON THE BASIS OF SUBSEQUENT INFORMATION, WHICH WAS SPECIFIC RELEVANT AND RELIABLE, AND AFTER RECOR DING THE REASONS FOR FORMATION OF HIS OWN BELIEF THAT IN THE ORIGINAL 8 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD NOT DISCLO SED THE MATERIAL FACTS TRULY AND FULLY AND, THEREFORE, INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AND WE AR E UNABLE TO SEE ANYTHING ON THE FACTS OF THE PRESENT CASE WHICH ARE MATERIALLY SIMILAR TO THE FACTS OF THE SA ID CASE. AS REGARDS HER RELIANCE ON THE DECISION OF A COORDI NATE BENCH IN THE CASE OF MITHILA CREDIT SERVICES LTD. V S. ITO [IT APPEAL NO. 1078/DELHI OF 2013, DATED 23.05.2014], I T IS IMPORTANT TO BEAR IN MIND THE FACT THAT IT WAS A CA SE IN WHICH THE ASSESSING OFFICER HAD REOPENED THE ASSESS MENT ON THE BASIS OF RECEIPT OF INFORMATION FROM DIRECTO RATE OF INVESTIGATION, AND, AS NOTED BY THE ASSESSING OFFIC ER IN THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, THE NAME OF THE ASSESSEE FIGURES AS ONE OF THE BENEFICIARIES OF THESE ALLEGED BOGUS TRANSACTIONS IN THE INFORMATION GIVE N BY THE DIRECTORATE. IF THE ASSESSEE WAS A BENEFICIARY OF SUCH A SCAM, THE INCOME WAS INDEED TO HAVE BEEN TAXED IN I TS HANDS BUT THEN IN THE CASE BEFORE US THE ONLY REASO N FOR REASSESSMENT PROCEEDINGS WAS THE FACT OF DEPOSIT OF BANK ACCOUNT WHICH BY ITSELF DOES NOT LEAD TO INCOME BEI NG TAXED IN THE HANDS OF THE ASSESSEE. LD. DEPARTMENT AL REPRESENTATIVE HAS REFERRED TO SEVERAL OTHER JUDICI AL PRECEDENTS IN SUPPORT OF THE PROPOSITION THAT AT TH E STAGE OF INITIATION OF REASSESSMENT PROCEEDINGS, ALL THAT IS TO BE SEEN AS EXISTENCE, RATHER THAN ADEQUACY, OF THE MAT ERIAL TO COME TO THE CONCLUSION THAT INCOME HAS ESCAPED ASSESSMENT. TO US, THERE CANNOT BE ANY, AND THERE IS NO, DOUBT ON THE CORRECTNESS OF THIS PROPOSITION BUT TH EN, AS WE HAVE ELABORATELY EXPLAINED EARLIER IN THIS ORDER , THE MATERIAL MUST INDICATE INCOME ESCAPING ASSESSMENT R ATHER THEN DESIRABILITY OF FURTHER PROBE IN THE MATTER WH ICH MAY OR MAY NOT LEAD TO INCOME ESCAPING THE ASSESSMENT. ON THE BASIS OF REASONS AS RECORDED IN THIS CASE, SUCH AN INFERENCE ABOUT INCOME ESCAPING ASSESSMENT, IN OUR HUMBLE UNDERSTANDING, CANNOT BE DRAWN. 10. IN VIEW OF THE REASONS SET OUT ABOVE, AS ALSO B EARING IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDE RED VIEW THAT THE REASONS RECORDED BY THE ASSESSING OFFICER, AS SET OUT EARLIER, WERE NOT SUFFICIENT REASONS FOR REOPEN ING THE 9 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 ASSESSMENT PROCEEDINGS. WE, THEREFORE, QUASH THE REASSESSMENT PROCEEDINGS. AS THE REASSESSMENT ITSE LF IS QUASHED, ALL OTHER ISSUES ON MERITS OF THE ADDITION S, IN THE IMPUGNED ASSESSMENT PROCEEDINGS, ARE RENDERED ACADEMIC AND INFRUCTUOUS. 13. IN THE LIGHT OF THE JUDICIAL DECISIONS DISCUSSE D HEREINABOVE AND ON FINDING PARITY IN FACTS WITH THE FACTS OF TH E CASE IN HAND, WE ARE OF THE CONSIDERED VIEW THAT THE ASSUMPTION O F JURISDICTION BY THE AO BY ISSUING NOTICE U/S 148 OF THE ACT IS B AD IN LAW. WE, ACCORDINGLY, QUASH THE NOTICE ISSUED U/S 148 OF THE ACT, THEREBY, QUASHING THE ASSESSMENT ORDER. 14. BEFORE PARTING, THE DR STRONGLY PAYS RELIANCE O N THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RAYMOND WOOLLEN MILLS LIMITED 236 ITR 34. WE FIND THAT THE FACTS O F THE CASE IN HAND ARE CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE CASE CONSIDERED BY THE HONBLE SUPREME COURT. FIRSTLY, THE HONBLE SUPREME COURT HAD OBSERVED THAT IT CANNOT STRIKE DO WN THE REOPENING OF THE CASE IN THE FACTS OF THIS CASE. T HE HONBLE SUPREME COURT FURTHER OBSERVED THAT IT WILL BE OPEN ED TO THE ASSESSEE TO PROVE THAT THE ASSUMPTION OF FACTS MADE IN THE NOTICE WAS ERRONEOUS. WE HAVE ALREADY EXPLAINED THE ERROR IN THE FACTS IN THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. THEREFORE, THE DECISION RELIED UPON BY THE DR WOULD DO NO GOOD TO THE REVENUE. 15. IN THE RESULT, THE ASSESSMENT IS QUASHED AND SI NCE, THE ASSESSMENT IS QUASHED, WE DO NOT FIND IT NECESSARY TO WELL INTO THE MERITS OF THE CASE. ADDITIONAL GROUND IS ALLOWED. 10 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 16. ITA NO. 4144/DEL/2018 : THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AMOUNTING TO RS. 11.38 LAKHS. 17. FACTS ON RECORD SHOW THAT THE PENALTY HAS BEEN LEVIED ON THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER DA TED 31.01.2013 FRAMED U/S 143(3)/147 OF THE ACT. 18. IN ITA NO. 745/DEL/2018 WE HAVE QUASHED THE ASS ESSMENT ORDER ITSELF. WHEN THE FOUNDATION (ASSESSMENT) IS REMOVED THE SUPER STRUCTURE (PENALTY) MUST FALL. THE AO IS DIR ECTED TO DELETE THE PENALTY SO LEVIED. 19. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (S. SRIVASTAVA) (N.K . BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03/06/2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 11 ITA NOS . 745/DEL/2014 & 4144/DEL/2018 DATE OF DICTATION 30.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 31.05.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 03.06.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 03.06.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 03.06.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 03.0 6.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER