YOGENDRA CHANDRA KURELE, NEW DELHI V. ACIT, CC- 23 (NOW CC- 32), NEW DELHI

ITA 4233/DEL/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2400 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 27-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Principle of natural justice
• Section: 271(1)(c); 143(3); 153A; 274; 132; 139

Judgement Text

1 ITA NO. 4233/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI G. S. PANNU, VICE PRESIDEN T AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 4233/DEL/20 17 (A.Y 2003-04) (THROUGH VIDEO CON FERENCING) YOGENDRA CHANDRA KURELE A-20, NARAIANA INDUSTRIAL AREA PHASE-1, NARAINA, NEW DELHI ABAPK7210M (APPELLANT) VS ACIT CC-23 (NOW CC-32) NEW DELHI (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDE R DATED 27.03.2017 PASSED BY CIT (A)-30, NEW DELHI FOR ASSESSMENT YEAR 2003-04. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY DESPITE THE FACT THAT ASSESSING OFFICER HAS NOT RECORDED SATISFACTION AS TO WHETHER THE PENALTY IS INITIATED FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 2. BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING APPELLANT BY SH. SANJAY KUMAR, ADV RESPONDENT BY SH. H. K. CHOUDHARY, CIT(DR) DATE OF HEARING 15.02.2021 DATE OF PRONOUNCEMENT 24 .02.2021 2 ITA NO. 4233/DEL/2017 THE PENALTY ORDER PARTICULARLY WHEN THE NOTICE ISSU ED UNDER SECTION 274 OF THE ACT DID NOT SPECIFY THE CHARGE FOR WHICH PENALTY WA S TO BE IMPOSED. 3. BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY DESPITE THE FACT THAT ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE IN THE ABSENCE OF ANY INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH IN ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT. 4. BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE IMPOSITION OF PENALTY OF RS. 1,43,581/- ON ACCO UNT OF ADDITION FOR VARIATION OF CASH IN HAND OF RS. 4,55,814/- PARTICULARLY WHEN THE EXPLANATION SUBMITTED BY THE ASSESSEE STOOD FULLY CORROBORATED AND SUBSTANTIATED BY THE FACTS ON RECORD. 5.BECAUSE THE LEARNED CIT(A) HAS ERRED IN LAW AND O N FACTS IN SUSTAINING THE IMPOSITION OF PENALTY FOR CONCEALING THE INCOME AS WELL AS FOR FURNISHING INACCURATE PARTICULARS OF INCOME. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM S OFTWARE EXPORT AND AGRICULTURE INCOME FROM AGRICULTURAL LAND AT KANPUR AND DELHI. ORIGINAL RETURN OF INCOME WAS FILED UNDER SECTION 139 DECLAR ING AN INCOME OF RS. 1,00,88,630/- ON 01.12.2003. THE SAME WAS ASSESSED UNDER SECTION 143 (1) VIDE ORDER DATED 25.03.2004. LATER ON DUE TO SEARC H AND SEIZURE ACTION UNDER SECTION 132 ON 01.09.2005 NOTICE UNDER SECTION 153A WAS ISSUED AND ASSESSMENT WAS FRAMED UNDER SECTION 153A/ 143(3) VI DE ORDER DATED 28.12.2007 BY MAKING VARIOUS ADDITIONS/DISALLOWANCE S AT AN INCOME OF RS. 10,85,27,736/-. ASSESSMENT SO FRAMED WAS SUBJECTED TO APPEAL BEFORE THE CIT(A) AND THE TRIBUNAL. THEREAFTER, ANOTHER SEARC H UNDER SECTION 132 WAS 3 ITA NO. 4233/DEL/2017 CARRIED OUT ON 19.01.2009 (2 ND IN SEQUENCE), CONSEQUENTLY NOTICE UNDER SECTION 153A WAS ISSUED. IN RESPONSE, THE ASSESSEE FILED RE TURN SHOWING AN INCOME OF RS. 1,26,77,948/- (WHICH REPRESENTED THE INCOME AFT ER GIVING APPEAL EFFECT) ON 09.02.2010. RETURN SO FILED WAS ASSESSED VIDE ORD ER DATED 31.12.2010 PASSED UNDER SECTION 153A/143(3) OF THE ACT. IN THE SAID A SSESSMENT, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 4,55,814/- ON ACCOU NT OF UNDISCLOSED CASH. THEREAFTER, THE PENALTY PROCEEDINGS UNDER SECTION 2 71(1)(C) THEREAFTER, TWO NOTICES UNDER SECTION 274 R.W.S. 271 DATED 31.12.20 10 AND 24.01.2014 OF THE INCOME TAX ACT WERE ISSUED. IN RESPONSE TO THE SAID NOTICES, THE ASSESSEE SUBMITTED HIS EXPLANATION SUPPORTED BY RELEVANT EVI DENCE. THE EXPLANATION OF THE ASSESSEE WAS REJECTED BY STATING THAT THE CIT(A ) CONFIRMED THE ADDITION THEREBY HOLDING THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF ITS INCOME TO THE TUNE OF RS. 4,55,814/- AND PENALTY OF RS. 1, 43,581/- WAS IMPOSED. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE. 5. THE LD. AR SUBMITTED THAT THE QUANTUM APPEAL BEF ORE THE TRIBUNAL HAS DELETED THE SAID ADDITIONS UPON WHICH THE PENALTY H AS BEEN LEVIED. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER, PE NALTY ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ADDITIONS MADE IN RESPECT OF A.Y. 2003- 04 HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER DATED 29.03.2019 IN ITA NOS. 27 07, 2709/DEL/2013 AND CO NOS. 201, 202/DEL/2014 FOR A.Y. 2003-04 AND 2004 -05. SINCE THE QUANTUM APPEAL BEFORE THE TRIBUNAL HAS DELETED THE SAID ADDITIONS UPON WHICH THE PENALTY HAS BEEN LEVIED, THE ADDITION ITSELF DO ES NOT SURVIVE. THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT UPON SUCH ADDITI ON BECOMES INFRUCTUOUS. HENCE APPEAL OF THE ASSESSEE IS ALLOWED. 4 ITA NO. 4233/DEL/2017 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF FEBRUARY, 2021. SD/- SD/- (G. S. PANNU) (SUCHITRA KAMBLE) VICE PRESIDENT JU DICIAL MEMBER DATED: 24/02/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 4233/DEL/2017