Shri Charanjit Singh, New Delhi V. ITO, New Delhi

ITA 4397/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5307 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Difference of opinion; TDS
• Section: 271(1)(c); 143(3); 27; 154

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH B, NEW DELHI BEFORE : SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 126/DEL/2017 ASSESSMENT YEAR: 2010-11 CUSHMAN & WAKEFIELD PROPERTY MANAGEMENT SERVICES INDIA PVT. LTD., B-6/8, COMMERCIAL COMPLEX, OPPOSITE DEER PARK, SAFDARJUNG ENCLAVE, NEW DELHI. (PAN-AACCC3657N) (APPELLANT) VS. DCIT, CIRCLE 6(2), NEW DELHI. (RESPONDENT) APPELLANT BY MS. SHRUTI KHI MTA , AR RESPONDENT BY MS. ASHIMA NEB, SR. DR ORDER PER SUCHITRA KAMBLE, J.M.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 07.10.2016 PASSED BY THE CIT(A)-35, NEW DELHI FOR THE ASSESSME NT YEAR 2010-11. 2. THE GROUNDS OF APPEAL ARE AS UNDER : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 35 (LD. CIT(A)) ERRED IN DATE OF HEARING 20.08.2019 DATE OF PRONOUNCEMENT 21 .08.2019 ITA NO. 126/DEL/2017 2 CONFIRMING PENALTY OF INR 4,92,973 UNDER SECTION 27 1(1)(C) OF THE INCOME TAX ACT, 1961 (ACT) IN IMPUGNED PENALTY ORDER PASS ED ON MARCH 24, 2015 BY THE LD. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 6(2), NEW DELHI (LD. AO). 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING PENALTY ON THE FACTUA LLY WRONG FINDING THAT THE ISSUE OF WRITTEN OFF TDS HAD COME TO BE UNEARTHE D DURING THE ASSESSMENT PROCEEDINGS WHEN THE APPELLANT FILED REV ISED RETURN BEFORE THE LD. AO. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WHILE CONFIRMING THE PENALTY HAS IGNORED THE FACT THAT THE COMPANY HAS SUO-MOTO REVISED ITS RETURN OF INCOME ( ROI) ON MARCH 31, 2012 INTER-ALIA CLAIMING THE AMOUNT OF TDS RECOVERAB LE WRITTEN OFF OF INR 14,50,350. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING PENALTY FOR FILLING OF INACCURATE PARTICULARS OF INCOME UNDER SECTION 2 71(1)(C) OF THE ACT WITHOUT APPRECIATING THAT MERE REJECTION OF A CLAIM DOES NOT TANTAMOUNT TO FILING OF INACCURATE PARTICULARS OF INCOME. 5. THAT THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMIN G PENALTY WITHOUT APPRECIATING THAT DENIAL OF CLAIM ON ACCOUNT OF TDS WRITTEN OFF IS MERELY BASED ON BONAFIDE DIFFERENCE OF OPINION ON LEGAL CL AIM BETWEEN THE APPELLANT AND THE ASSESSING AUTHORITY, AND IT DOES NOT TANTAMOUNT TO FILLING OF INACCURATE PARTICULARS OF INCOME UNDER SECTION 2 71(1)(C) OF THE ACT. 6. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ORDER OF THE LD. CIT(A) IS INVALID AND BAD IN LAW AS IT HAS B EEN PASSED IN CONTRAVENTION TO SPECIFIC PROVISIONS OF SECTION 275 (1)(A) OF THE ACT AND IN COMPLETE DISREGARD TO THE DECISION OF THE JURISDICT IONAL HIGH COURT IN THE ITA NO. 126/DEL/2017 3 CASE OF COMMISSIONER OF INCOME TAX VS. MOHAIR INVES TMENT AND TRADING CO. P. LTD. (245 CTR 312). 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A), ERRED IN INITIATING THE PENALTY PROCEEDINGS UNDER SECTION 27 1(1)(C) OF THE ACT. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO EACH OTHER. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER, BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 3. THE ASSESSEE FILED ITS RETURN OF INCOME ON 23.10 .2010 DECLARING AN INCOME OF RS.3,50,70,596/-. THE ASSESSMENT WAS COMP LETED U/S. 143(3) ON 29.11.2012 AT AN INCOME OF RS.6,32,17,580/- AFTER M AKING ADDITIONS ON ACCOUNT OF DISALLOWANCE OF WRITTEN OFF TDS, INCOME ACCRUED BUT NOT DUE, SERVICE TAX CREDIT, EXPENSES DISALLOWED AND BAD DEBT AMOUNTING TO RS.14,50,350/-, RS.70,20,855/-, RS.1,96,68,644/-, RS.47,69,380/- AN D RS.13,80,231/- RESPECTIVELY. SIMULTANEOUSLY, PENALTY PROCEEDINGS U /S. 271(1)(C) WERE INITIATED FOR CONCEALING/FURNISHING INACCURATE PART ICULARS OF INCOME. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A), WHERE THE ASSESSMENT ORDER WAS CONFIRMED ON ACCOUNT OF DISALL OWANCE OF WRITTEN OFF TDS. BEFORE THE CIT(A), THE ASSESSEE FILED RECTIFIC ATION APPLICATION REQUESTING TO RECTIFY THE ASSESSMENT ORDER PASSED BY THE ASSES SING OFFICER. THE ASSESSEES CONTENTION WAS FOUND TO BE CORRECT AND THE ORDER U/ S. 154 OF THE ACT WAS PASSED ON 06.06.2013, DELETING THE ADDITION MADE ON ACCOUNT OF INCOME ACCRUED BUT NOT DUE OF RS.70,20,855/- AND DISALLOWA NCE OF EXPENSES OF RS.47,69,380/-. SINCE THESE ADDITIONS WERE TREATED AS CONCEALED INCOME AND INACCURATE PARTICULARS OF INCOME OF THE ASSESSEE, S HOW CAUSE NOTICE U/S. ITA NO. 126/DEL/2017 4 271(1)(C) OF THE ACT READ WITH SECTION 274 DATED 29 .11.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE COMPANY. THE ASSESSEE FILE D REPLY TO THE NOTICE. AFTER CONSIDERING THE REPLY, THE ASSESSING OFFICER HELD T HAT THE ASSESSEE HAS NOT FURNISHED ACCURATE PARTICULARS OF ITS INCOME TO THE EXTENT OF RS.14,50,350/- AND HENCE, IMPOSED PENALTY OF RS.4,92,973/-. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE QUANTUM APPEAL ON THE GROUNDS OF ASSESSEES CLAIM REGARDING ALLOWANCE OF WRITTEN OFF TDS OF RS.14,50,350/- HAS BEEN ALLOWED BY THE TRIBUNAL IN ITA NO. 185/DEL/201 4 A.Y. 2010-11, ORDER DATED 11.07.2017. THEREFORE, THE LD. AR SUBMITTED T HAT THE VERY BASIS OF PENALTY DOES NOT SURVIVE. THEREFORE, PENALTY APPEAL BE ALLOWED. 6. THE LD. DR RELIED UPON THE ORDER OF THE CIT(A) A ND THE PENALTY ORDER AS WELL AS THE ASSESSMENT ORDER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT T HE QUANTUM APPEAL HAS BEEN ALLOWED BY THE TRIBUNAL. THUS, THE ADDITION, ON WHI CH PENALTY HAS BEEN IMPOSED BY THE REVENUE DOES NOT SURVIVE. THEREFORE, PRESENT PENALTY APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 126/DEL/2017 5 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2019. SD/- SD/- (R.K. PANDA) (SUCHITR A KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST AUGUST, 2019 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI