DCIT, New Delhi V. Sh. Upinder Kumar Widhani, New Delhi

ITA 4403/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4119 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 11-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UPINDER KUMAR WIDHANI
• Keywords: Unexplained investment; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SH.R.K.PANDA, ACCOUNTANT MEMBER AND SH.K.N.CHARY, JUDICIAL MEMBER ITA NO. 4403/DEL/2014 (ASSESSMENT YEAR: 2 008-09) APPELLANT BY SH. UPINDER KUMAR WIDHANI, ASSESSEE RESPONDENT BY SH. AMIT JAIN, SR.DR DATE OF HEARING 16 . 1 0.2017 DATE OF PRONOUNCEMENT 16 . 1 0.2017 ORDER PER K.N.CHARY, JUDICIAL MEMBER AGGRIEVED BY THE ORDER DATED 29.05.2014 IN APPEAL NO.1508/12-13 PASSING BY THE COMMISSIONER OF INCOME TAX (APPEAL) [IN SHORT CIT(A)]-XXX, NEW DELHI FOR 2008-09 ASSESSMENT YEAR, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED (A) DELETING THE PENALTY OF RS.12,27,424/- IMPOSED BY T HE ASSESSING OFFICER U/S 271(1)(C) OF INCOME TAX ACT, 1961 ON QUANTUM OF ADD ITION OF RS.35,97,482/- MADE U/S 144 OF I.T.ACT, 1961 ON ACCOUNT OF UNEXPLA INED INVESTMENT IN SHARES WITH M/S RELIGARE SECURITIES PVT. LTD. AND V ARIOUS MUTUAL FUNDS. (B) DELETING THE ADDITIONS OF RS.35,97,482/- BY ACCEPTI NG THE FRESH EVIDENCE WITHOUT GIVING THE ASSESSING OFFICER REASONABLE OPP ORTUNITY AS PER RULE 46A(3) TO EXAMINE THE FRESH EVIDENCE SUBMITTED BY THE ASSE SSEE AND NOT ALLOWING REASONABLE TIME TO AO TO SUBMIT THE REMAND REPORT. (C) THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE ALL AND ANY OF THE GROUNDS OF APPEAL DURING THE COURSE OF APPEAL. DCIT, CIRCLE-40(1), NEW DELHI. VS UPINDER KUMAR WIDHANI, 513, CHANDANWARI APARTMENT, SECTOR-10, DWARKA, NEW DELHI. PAN-AAGPW5236J (APPELLANT) (RESPONDENT) ITA NO. 4403/DEL/2014 2. BRIEFLY STATED FACTS ARE THAT THE RETURN OF INCO ME FILED ON 17.07.2008 BY THE ASSESSEE DECLARING A TOTAL INCOME OF RS.3,20,19 0/- WAS SCRUTINIZED AND BY WAY OF ORDER DATED 20.12.2010 PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), THE AO ASSESSED THE INCOME AT RS.35,9 7,482/- ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN SHARES & MUTUAL FUNDS. SIMULTANEOUSLY, PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED AND CONCLUDED BY ORDER DATED 10.06.2011 WITH THE LEVY OF PENALTY OF RS.12, 27,424/-. IN APPEAL, LD.CIT(A) FOUND THAT THE ADDITION U/S 144 OF THE AC T WAS DELETED IN APPEAL NO.- 1502/13-14 BY WAY OF ORDER DATED 28.05.2014, AS SUC H THE PENALTY U/S 271(1)(C) LEVIED BY THE AO VIDE ORDER DATED 10.06.2 011 WAS ALSO LIABLE TO BE DELETED. AGGRIEVED BY THE FINDINGS OF THE LD.CIT(A ), THE REVENUE IS IN APPEAL BEFORE US. 3. IT IS THE ARGUMENT OF LD. DR THAT DELETION OF TH E PENALTY IMPOSED BY THE AO IN RESPECT OF AN ADDITION OF RS.35,97,482/- ON A CCOUNT OF UNEXPLAINED INVESTMENTS IN SHARES FROM M/S RELIGARE SECURITIES PVT. LTD. AND VARIOUS MUTUAL FUNDS, IS BAD UNDER LAW AND THE LD.CIT(A) ER RED IN ACCEPTING THE FRESH EVIDENCE WITHOUT GIVING AN OPPORTUNITY TO THE AO. PER CONTRA, IT IS THE SUBMISSION OF THE LD.AR THAT NO ADDITIONAL EVIDENCE WAS RELEVANT IN THIS MATTER INASMUCH AS THE LD.CIT(A) DELETED THE PENALTY ON AC COUNT OF THE DELETION OF QUANTUM IN APPEAL AS SUCH THIS APPEAL IS A MISCONCE IVED ONE AND IS LIABLE TO BE DISMISSED. 4. WE HAVE CAREFULLY GONE THROUGH THE RECORD. ORDE R OF THE LD.CIT(A) READS THAT THE REASON FOR DELETING THE PENALTY IS DELETIO N OF THE QUANTUM IN APPEAL NO.-1502/13-14 BY ORDER DATED 28.05.2014. AS A MAT TER OF FACT, THE ORDER OF ITA NO. 4403/DEL/2014 THE FIRST APPELLATE AUTHORITY IN DELETING THE QUANT UM, ADDITION WAS UPHELD BY THE TRIBUNAL IN ITA NO.4402/DEL/2014 VIDE ORDER DAT ED 19.08.2016. A COPY OF THE ORDER OF THE TRIBUNAL UPHOLDING THE DELETION OF QUANTUM ADDITION IS PRODUCED BEFORE US AND THERE IS NO CONFLICT ON THIS ASPECT. SINCE THE QUANTUM ADDITION IS NO LONGER IN EXISTENCE, PENALTY CANNOT SURVIVE, AS SUCH THIS APPEAL IS LIABLE TO BE DISMISSED. WE, THEREFORE, BY UPHOL DING THE ORDER OF THE LD.CIT(A), FIND THAT THIS APPEAL IS DEVOID OF MERITS AND IS LIABLE TO BE DISMISSED. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER, 2017. SD/- SD/- (R.K.PANDA) (K.N.CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER *AMIT KUMAR* DATE:- 16.10.2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR ITAT NEW DELHI