Sh. Tarun Lamba, New Delhi V. DCIT, Faridabad

ITA 4445/DEL/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1214 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 17-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; TDS; FORM 26AS
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4445/DEL./2016 (ASSESSMENT YEAR : 2010-11) SHRI TARUN LAMBA, VS. DCIT, CENTRAL CIRCLE 1, HOUSE NO.9 10, SECTOR 16A, NEW DELHI. FARIDABAD. (PAN : AAQPL6970J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SOMIL AGARWAL, ADVOCATE REVENUE BY : SHRI H.K. CHOUDHARY, CIT DR DATE OF HEARING : 22,06.2021 DATE OF ORDER : 09.07.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, SHRI TARUN LAMBA (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO S ET ASIDE THE IMPUGNED ORDER DATED 24.06.2016 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-3, GURGAON AFFIRMING THE PENAL TY LEVIED VIDE ORDER DATED 30.03.2014 PASSED U/S 271AAA OF THE INC OME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEA R 2010-11 ON THE GROUNDS INTER ALIA THAT :- ITA NO.4445/DEL./2016 2 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271AAA OF RS.18,49,000/-. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY U/S 271AAA OF RS.18, 49,000/- MORE SO WHEN PENALTY WAS INITIATED & LEVIED BY LD. A.O. ONLY ON THE GROUND THAT MANNER OF EARNING UNDISCLOSED IN COME WAS NOT SUBSTANTIATED AND THUS, LD. CIT (A) HAS EXCEEDE D THE JURISDICTION. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY U/S 271AAA, MORE SO PAYMENT OF TAXES WERE MADE IN TIME AVAILABLE UNDER THE LAW. 4. IN ANY VIEW OF THE MATTER AND IN ANY CASE, IMPOS ITION OF PENALTY U/S 271AAA AND CONFIRMED BY LD. CIT(A) IS B AD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED UNDER SECTION 143(3) READ WITH SECTION 153A (1)(B) OF THE ACT, PENALTY PROCEEDINGS WERE INITIATED UNDER SECTION 271AAA OF THE ACT ON THE GROUND THAT ASSESSEE HAS SURRENDERED AN INCOME OF RS.1,84,90,000/- ON ACCOUNT OF INVESTMENT MADE BY H IM IN CASH, JEWELLERY AND PROPERTIES. DECLINING THE CONTENTION S RAISED BY THE ASSESSEE, ASSESSING OFFICER LEVIED PENALTY OF RS.18 ,49,000/- @10% OF THE UNDISCLOSED INCOME OF RS.1,84,90,000/- ON THE GROUND THAT THE ASSESSEE HAS FAILED TO SPECIFY AND SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN EAR NED. ITA NO.4445/DEL./2016 3 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING APPEAL WHO HAS CONFIRMED THE PENALTY LEVIED BY THE AO BY DISMISSING THE APPEAL. FEELING AGGRIEVED, THE ASSE SSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, DURING SEARCH AND SEIZURE OPERATIO N U/S 132(1) OF THE ACT CARRIED OUT AT THE BUSINESS PREMISES OF M/S. IMPERIAL AUTO INDUSTRIES LTD. GROUP OF CASES ON 02.09.2009 A S WELL AS AT THE RESIDENTIAL PREMISES OF ASSESSEE, THE ASSESSEE MADE SURRENDER OF INCOME OF RS.1,84,90,000/- ON ACCOUNT OF INVESTMENT MADE BY HIM IN CASH, JEWELLERY AND PROPERTIES. IT IS ALSO NOT IN DISPUTE THAT ASSESSEE HAS SURRENDERED INCOME OF RS.1,84,90,000/- IN HIS RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 142 (1) O F THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS ALREADY P AID INCOME-TAX ALONG WITH INTEREST ON THE SURRENDERED AMOUNT. 6. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, ARGUMENTS ADDRESSED BY THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, CASE LAWS RELIED UPON, TWO QUESTIONS ARISE FOR DETERMINATION IN THIS CASE IS :- ITA NO.4445/DEL./2016 4 (1) AS TO WHETHER ASSESSEE HAS FAILED TO SPECIFY AND SUBSTANTIATE THE MANNER IN WHICH SURRENDERED INCOME HAS BEEN EARNED AS HAS BEEN HELD BY AO IN THE ASSESSMEN T ORDER; AND (2) AS TO WHETHER ASSESSEE HAS FAILED TO SATISFY TH E CONDITION SPECIFIED IN SECTION 271AAA(2)(III) WITH REGARD TO PAYMENT FOR TAXES AND INTEREST IN RESPECT OF UNDISCLOSED INCOME OF RS.1,84,90,000/- IN DUE TIME AS HAS BEEN UPHELD BY LD. CIT (A) IN THE IMPUGNED ORDER? 7. SO FAR AS QUESTION OF SUBSTANTIATING THE MANNER BY THE ASSESSEE IN WHICH THE SURRENDERED INCOME HAS BEEN E ARNED IS CONCERNED, THIS ISSUE HAS ALREADY BEEN DECIDED BY T HE LD. CIT (A) IN FAVOUR OF THE ASSESSEE BY RETURNING FOLLOWING FI NDINGS :- IN VIEW OF THE FACTS OF THE CASE, SUBMISSIONS MADE BY THE APPELLANT AND FOLLOWING THE JUDICIAL PRONOUNCEMENTS ON THIS ISSUE INCLUDING THE ABOVE DECISION OF HONBLE ITAT CHANDIGARH BENCH, THE CONTENTIONS OF THE APPELLANT WITH REGARD TO THE SECOND CONDITION OF SUBSTANTIATING TH E MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED IS ACCEPTE D. 8. SO, THE FIRST QUESTION FRAMED IN THIS CASE IS DE CIDED IN FAVOUR OF THE ASSESSEE. 9. NOW, COMING TO THE SECOND QUESTION OF FACT FRAME D IN THIS CASE IS, AS TO WHETHER THE ASSESSEE HAS FAILED TO SPECIFY T HE CONDITION SPECIFIED IN SECTION 271AAA(2)(III) OF TH E ACT AS TO PAYMENT OF TAXES TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF UNDISCLOSED INCOME. 10. UNDISPUTEDLY, AS PER COMPUTATION OF INCOME, TOT AL TAX PAYABLE BY THE ASSESSEE WAS RS.75,90,283/- OUT OF W HICH ITA NO.4445/DEL./2016 5 RS.11,74,362/- WAS DEDUCTED AS TDS AND THE BALANCE TAX PAYABLE WAS SHOWN IN FORM 26AS OF THE ASSESSEE AS UNDER :- (I) DEPOSITED IN BANK RS.37,13,410 (II) CASH SEIZED BY ADJUSTED RS.30,00,000 (III) SELF ASSESSMENT TAX PAID RS.8,05,274 11. IT IS ALSO NOT IN DISPUTE THAT THE DATE OF SEAR CH WAS 02.09.2009 AND THE DATE OF FILING RETURN WAS 31.07. 2010 WHEREAS THE RETURN WAS FILED BY THE ASSESSEE ON 27.10.2010. LD. CIT (A) AFTER PERUSING FORM 26AS REACHED THE CONCLUSION THA T THE ASSESSEE HAS PAID TAX BEYOND DUE DATE OF RETURN AMOUNTING TO RS.58,37,005/- DETAILED AS UNDER :- DATE OF DEPOSIT TAX PAID 15.10.2010 RS.8,05,280/- 16.12.2011 RS.2,11,290/- 10.01.2012 RS.1,000/- 30.03.2014 RS.29,68,435/- 12.06.2014 RS.18,49,000/- 12. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNE D ORDER PASSED BY THE LD. CIT (A) CONTENDED THAT LD. CIT (A ) HAS RETURNED THE INCORRECT FINDINGS ON THE FACE OF FACTS ON RECO RD AND DREW OUR ATTENTION TOWARDS COMPUTATION OF TOTAL TAXABLE INCO ME WHICH IS AVAILABLE ON JUDICIAL FILE AS ANNEXURE A, AND DET AIL OF TAX AMOUNTS SEIZED IS GIVEN IN ANNEXURE 1. LD. AR FO R THE ASSESSEE RELIED UPON THE ORDER DATED 15.06.2017 PASSED BY THE COORDINATE ITA NO.4445/DEL./2016 6 BENCH OF THE TRIBUNAL IN QUANTUM PROCEEDINGS IN CAS E OF ASSESSEE IN ITA NO.5079/DEL/2012 . 13. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVE NUE CONTENDED THAT THE FINDINGS RETURNED BY LD. CIT (A) ARE ON THE BASIS OF MARSHALLING OF FACTS AND RELIED UPON THE IMPUGNE D ORDER PASSED BY THE LD. CIT (A). 14. LD. CIT (A) WHILE FIXING THE LIABILITY OF THE A SSESSEE IN NOT PAYING THE INCOME-TAX AND INTEREST THEREON QUA SURR ENDERED INCOME IN DUE TIME PROCEEDED TO HOLD THAT CREDIT OF RS.30, 00,000/- SEIZED AS CASH CANNOT BE TREATED AS ADVANCE TAX TO BE ADJU STED AGAINST THE TOTAL TAX LIABILITY. HOWEVER, WHEN WE PERUSE PARAS 7, 7.1 & 7.2 OF ORDER DATED 15.06.2017 (SUPRA) PASSED BY THE TRIBUNAL IN ASSESSEES QUANTUM PROCEEDINGS HOLDING INTER ALIA T HAT IT HAS BEEN DECIDED BY THE COORDINATE BENCH OF THE TRIBUNAL THA T ASSESSEE SURRENDERED INCOME OF RS.1,84,90,000/-, WHICH INCLU DE CASH FOUND AND SEIZED OF RS.30,00,000/- AND ON ACCOUNT OF JEWE LLERY AMOUNTING TO RS.55,00,000/-; THAT THE ASSESSEE WAS ENTITLED TO ADJUSTMENT OF SEIZED CASH AMOUNT TOWARDS ADVANCE TA X LIABILITY; THAT ORDER DATED 15.06.2017 (SUPRA) PASSED IN QUANTUM PROCEEDINGS HAS ATTAINED FINALITY HAVING NOT BEEN C HALLENGED FURTHER. IN THESE CIRCUMSTANCES, FINDINGS RETURNED BY LD. CIT (A) THAT ASSESSEE IS NOT ENTITLED FOR CREDIT OF AMOUNT OF CASH SEIZED OF ITA NO.4445/DEL./2016 7 RS.30,00,000/- TOWARDS ADVANCE TAX LIABILITY, ARE N OT SUSTAINABLE IN THE EYES OF LAW. 15. LD. AR FOR THE ASSESSEE DREW OUR ATTENTION TOWA RDS COMPUTATION OF TOTAL TAXABLE INCOME AVAILABLE ON JU DICIAL FILE AS ANNEXURE A WHEREIN HE HAS CATEGORICALLY PAID THE AMOUNT OF RS.27,13,410/- IN THE BANK, AS IS EVIDENT FROM PAGE 52 OF THE PAPER BOOK AND HAS ALSO ACCOUNTED FOR AN AMOUNT OF RS.30, 00,000/- (TOTAL RS.57,13,410/-), WHICH IS IN ACCORDANCE WITH THE OR DER PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES CASE (SUPRA) QUA QUANTUM PROCEEDINGS. ASSESSEE HAS GIVEN HANDWRITTE N SUMMARY OF PAYMENT OF TAX PAID BEFORE 31.03.2010 AS UNDER :- TOTAL TAX PAYABLE RS.75,90,286 MINUS : TAX ON INCOME OFFERED TWICE (RS.15,00,000 X 30%) TAX ON INCOME OFFERED AT 30% INSTEAD OF 20% [RS.84,90,000 (RS.99,90,000 RS.15,00,000) X 10%] RS.4,50,000 RS.8,49,000 RS.12,99,000 TOTAL RS.62,91,286 TAX DEPOSITED RS.68,87,772 16. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS PAID TAXES AL ONG WITH INTEREST IN DUE TIME IN ACCORDANCE WITH THE PROVISIONS CONTA INED UNDER SECTION 271AAA(2)(III) OF THE ACT THUS THE PENALTY SUSTAINED BY THE ITA NO.4445/DEL./2016 8 LD. CIT (A) IS LIABLE TO BE DELETED. HOWEVER, PAYM ENT OF DUE TAXES ALONG WITH INTEREST ARE SUBJECT TO VERIFICATION BY THE AO. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED ORDER PRONOUNCED IN OPEN COURT ON THIS 9 TH DAY OF JULY, 2021. SD/- SD/- (N.K. BILLAIYA) (KULDIP SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 9 TH DAY OF JULY, 2021. TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-3, GURGAON. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.