SAWNEY BUILDERS, DEHRADUN V. DCIT, CIRCLE- 2, DEHRADUN

ITA 4421/DEL/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0528 (ITAT-DEHRADUN)
• Duration Of Justice: 3 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 03-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N C UPADHYAYA
• Assessee Lawyers: K K JUNEJA
• Section: 271(1)(c); 153A; 274; 73; 132

Judgement Text

1 ITA NO. 4421/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN CIRCUIT BENCH: DEHRADUN BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND DR. B. R. R. KUMAR, ACCOUNT ANT MEMBER ITA NO. 4421/DDN/ 2017 ( A.Y. 2011-12) (THROUGH VIDEO C ONFERENCING) SAWNEY BUILDERS 129 C, RACE COURSE, DEHRADUN, UTTARAKHAND AAXFS0947 (APPELLANT) VS DCIT CIRCLE-2 DEHRADUN (RESPONDENT) APPELLANT BY SH. K. K. JUNEJA, ADV RESPONDENT BY SH. N. C. UPADHYAYA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 26.05.2017 PASSED BY CIT(A)-DEHRADUN FOR ASSESSMENT YEAR 2011- 12. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- THE APPELLANTS CRAVES LEAVE TO RESPECTFULLY OBJECT TO THE ORDER APPEALED AGAINST ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF HIS C ASE THE LD. A.O ERRED IN LEVYING THE IMPUGNED PENALTY AND THE LD.CIT(A) IN C ONFIRMING IT SUBSTANTIALLY. 3. THE ASSESSEE FIRM IS A PARTNERSHIP FIRM CARRYIN G ON THE BUSINESS OF CIVIL DATE OF HEARING 19.02.2021 DATE OF PRONOUNCEMENT 15.03.2021 2 ITA NO. 4421/DEL/2017 CONSTRUCTION WORK AND IS AN OLD TAX PAYER. ORIGINA L RETURN OF INCOME WAS FILED DECLARING NET TAXABLE INCOME OF RS. 1,19,287/- ON 2 1 ST SEPTEMBER, 2011. SEARCH WAS CONDUCTED U/S 132 OF THE INCOME TAX ACT, 1961, ON 17/2/2012. NOTICE U/S 153A WAS ISSUED TO FURNISH RETURN OF INC OME ON OR BEFORE 12/3/2013 VIDE NOTICE DATED 4/2/2013. ON 22/05/201 3 IN RESPONSE TO NOTICE U/S 153A, THE ASSESSEE FILED RETURN OF INCOME DECLA RING THE INCOME OF RS. 2,50,19,287/- WHICH INCLUDE ORIGINAL RETURN INCOME OF RS. 1,19,287/- + 1,50,000/- SURRENDERED AMOUNT CREDITED TO PROFIT AN D LOSS ACCOUNT. ASSESSMENT ORDER DATED 30/1/2014 WAS PASSED THEREBY ASSESSING THE TOTAL INCOME AT RS. 5,91,05,464/-. THE ASSESSEE FILED AP PEAL BEFORE THE CIT(A) AND SUSTAIN THE ADDITIONS VIDE ORDER DATED 26/05/2017. THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL GRANTED RELIE F TO THE EXTENT OF RS. 1,89,07,245/- VIDE ORDER DATED 3/6/2019 FOR WHICH O RDER GIVING EFFECT WAS PASSED ON 19/8/2019 BY THE ASSESSING OFFICER . IN THE MEANWHILE, NOTICE U/S 274 READ WITH SECTION 271 WAS ISSUED ON 30/1/2014 A ND AFTER GIVING OPPORTUNITY TO THE ASSESSEE PASSED THE PENALTY ORDE R DATED 30/03/2016. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT NOTICE DATED 30/1/2014 HAS NOT SPECIFIED UNDER WHICH THE PENALTY HAS BEEN INITIATED. THE LD. AR RELIED UPON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF CIT (A ) VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC) AND CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC) AS WELL AS DELHI HIGH CO URT DECISION IN CASE OF PR. CIT(A) S. M/S SAHARA INDIA LIFE INSURANCE CO. LT. ( ITA NO. 475/2019 VIDE ORDER DATED 02.08.2019). THUS, THE LD. AR SUBMITTED THAT THE PENALTY ITSELF BECOMES NULL AND VOID. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER, PEN ALTY ORDER AND THE ORDER OF THE CIT(A). 3 ITA NO. 4421/DEL/2017 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT IN ASSESSMENT ORDER WHILE INITIATING THE PENALTY U/S 271(1)(C) OF THE ACT NO SATISFACTION WA S RECORDED AS TO WHETHER BOTH THE LIMBS OF SECTION 271(1)(C) OF THE ACT WAS INVOK ED RELATING TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. ME RELY STATING THAT 271(1)(C) OF THE ACT PENALTY WAS INITIATED DOES NOT AMOUNT TO SA TISFACTION. THE NOTICE U/S 271(1)(C) READ WITH SECTION 274 IS ALSO SILENT ON T HE PARTICULAR LIMB UNDER WHICH THE PENALTY ORDER WAS PASSED. THERE WERE NO SPECIFIC CHARGES AS TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME IN THE PENALTY ORDER ITSELF. THEREFORE, THE VERY BASIS OF THE PENALTY WAS NOT DETERMINED BY THE REVENUE AUTHORITIES. IN LIGHT OF THE DECISIONS OF THE HON'BLE SUPREME COURT IN CASE OF SSAS EMERALD (SUPRA) AND HONBLE DELHI HIGH COURT IN CASE OF M/S SAHARA INDIA (SUPRA), WE DELETE THE PENALTY. THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15TH DAY OF MARCH, 2021. SD/- SD/- (B. R. R. KUMAR) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 15/03/2021 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 4 ITA NO. 4421/DEL/2017 ASSISTANT REGISTRAR ITAT NEW DELHI