Mr Vikrant Mehra , Amritsar. V. The Income-tax Officer, WARD 5(4), Amritsar

ITA 431/ASR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0516 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-11-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 28-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Unexplained cash credit
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N.K.SAINI, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.431(ASR)/2017 ASSESSMENT YEAR:2009-10 SH. VIKRAM MEHRA C/O M/S. GEETU TRADERS MAQBOOL ROAD, AMRITSAR [PAN:AAAAB1049F] VS. INCOME TAX OFFICER, WARD-5(4), AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARO RA (LD. ADV.) RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 29.11.2018 DATE OF PRONOUNCEMENT: 30.11.2018 ORDER PER N.K. CHOUDHRY,(JM) THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APP ELLANT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 23.05.201 7 IMPUGNED HEREIN, PASSED BY THE LD. CIT(A)-AMRITSAR, U/S 250(6) OF THE I. T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT), WHEREBY THE PENALTY WAS PARTLY SUSTAINED AND DIRECTED TO BE RESTRICTED ON THE AMOUNT OF ADDITIO N OF RS.5,21,323/-. 2. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ALTHOUGH HE HAS RAISED AS MUCH AS SEVEN GROUNDS OF APPEAL, HOWEVER, THE CASE ON LEGAL ASPECTS, SQUARELY COVERED BY VARIOUS JUDGMENTS OF D IFFERENT HIGH COURTS AND SPECIFICALLY THE LATEST ORDER PASSED BY THE AM RITSAR BENCH IN ITA NO.431(ASR)/2017 (A.Y.2009-10) MR. VIKRANT MEHRA, AMRITSAR VS. ITO 2 THIRD MEMBER CASE IN CASE OF HPCL MITTAL ENERGY LTD., BATHINDA VS. ADDL. CIT, CIRCLE-1, BATHINDA IN ITA NOS.554 & 555(ASR)/2014 & 510 & 556(ASR)/2014. THE LD. COUNSEL ALSO ARGUED THAT NO PR OPER OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE, IN THE PENALTY PROCEEDING S WHICH AMOUNT TO DENIAL OF JUSTICE. 3 ON THE CONTRARY, THE LD. DR RELIED UPON THE ORDERS P ASSED BY THE AUTHORITIES BELOW. 4. HAVING HEARD THE ARGUMENTS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE AO HAD MADE THE ADDI TION OF RS.23,28,500/- ON ACCOUNT OF UNEXPLAINED CREDITS IN HIS BANK ACCOUNT MAIN TAINED IN IDBI BANK, AMRITSAR. THE CIT(A) ON APPEAL AGAINST THE ASSESSME NT ORDER, VIDE ORDER DATED 29.03.2014 ALLOWED THE RELIEF OF RS.13,8 4,841/- OUT OF TOTAL ADDITION OF RS.23,18,500/- AND CONFIRMED THE BALANCE A DDITION OF RS.933,659/-. AGAINST THE CONFIRMATION OF ADDITION OF RS.933,659/-, THE ASSESSEE AND AGAINST THE PART DELETION OF ADDITION RS.13, 84,841/- THE DEPARTMENT FILED THE APPEALS BEFORE THE HONBLE ITAT, AMRITSAR, THE CO- ORDINATION BENCH VIDE ORDER DATED 15.06.2016 HAD REST RICTED THE ADDITION TO RS.521,323/ IN THE APPEAL OF THE ASSESSEE AND DISMISSED TH E APPEAL OF THE DEPARTMENT DUE TO LOW MONETARY LIMIT AS PER CBDT CIR CULAR APPLICABLE AT THAT TIME . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOWHERE RECODE D UNDER WHICH LIMB AS PRESCRIBED 271(1)(C) THE SATISFACTION HAS BEEN MADE. IN THE NOTICE U/S 274 IT WAS NOT MENTIONED FOR WHICH LIMB AS PR ESCRIBED U/S 271(1)(C) OF THE ACT , THE PENALTY WAS TO BE LEVIED, T HEREAFTER, THE ASSESSING OFFICER HAS IMPOSED THE PENALTY ORDER ON BOTH OF THE L IMBS I.E. FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. ITA NO.431(ASR)/2017 (A.Y.2009-10) MR. VIKRANT MEHRA, AMRITSAR VS. ITO 3 IT IS WELL SETTLED LAW THAT THE PENALTY EMERGES FROM THE ASSESSMENT ORDER AND SATISFACTION MUST BE THERE EITHER DIRECTLY OR INDIRECTLY AND WHILE LEVYING THE PENALTY , THE A.O. MUST BE SURE UNDER WH ICH LIMB, HE IS LEVYING THE PENALTY AND IT IS TRITE THAT PENALTY CANNOT BE LEVIED FOR TWIN CHARGES UNTIL AND UNLESS THE SATISFACTION RECORDED UNDER BOTH THE LIMBS SEPARATELY AND FOLLOWED WITH CORRECT NOTICE U/S 274 OF THE ACT, SPECIFYI NG EXACT LIMBS, BECAUSE THE PENALTY FOR FURNISHING OF INACCURATE PARTICUL ARS AND CONCEALMENT OF PARTICULARS OF INCOME ARE ALL ALTOGETHER MUTUALLY D IFFERENT CONNOTATION WHICH IS SETTLED BY THE VARIOUS COURTS, HENCE, WE DO NOT HAVE ANY HESITATION TO DELETE THE PENALTY BEING ILLEGAL AND UNJUSTIFIED. CONSEQUENTLY, THE ORDER IMPUGNED HEREIN PASSED BY THE LD. CIT(A) IS LIABLE TO BE SET ASIDE AS THE SAME IS SUFFERED FROM PERVERSITY, IMPROPRIETY AND ILLEG ALITY. AS WE HAVE ALREADY DELETED THE PENALTY ON LEGAL GROU ND, HENCE NO NEED TO TRAVEL ON MERIT. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.2018. SD/- SD/- (N.K.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 30.11.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. VIKRAM MEHRA C/O M/S. GEETU TRADERS MAQBOO L ROAD, AMRITSAR (2) THE ITO, WARD-5(4), AMRITSAR (3) THE CIT(A), AMRITSAR (4) THE CIT CONCERNED. (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER