Sh. Manav Sardana, New Delhi V. DCIT, Faridabad

ITA 4447/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1490 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 17-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K BANSAL SENIOR
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4447/DEL./2016 (ASSESSMENT YEAR : 2010-11) SHRI MANAV SARDANA, VS. DCIT, CENTRAL CIRCLE 1, HOUSE NO.D 99, FARIDABAD. PANCHSHEEL ENCLAVE, NEW DELHI. (PAN : AATPS6108A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SOMIL AGGARWAL, ADVOCATE REVENUE BY : SHRI N.K. BANSAL, SENIOR DR DATE OF HEARING : 06.06.2019 DATE OF ORDER : 10.06.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, SHRI MANAV SARDANA (HEREINAFTER REFERRE D TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 24.06.2016 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-3, GURGAON QUA THE ASSESSMENT YEAR 2010-11 CONFIRMING THE PENALTY LEVIED U/S 271AAA ON THE GRO UNDS INTER ALIA THAT :- ITA NO.4447/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 C ONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271AAA OF R S.19,69,000/- 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE LEVY OF PENALTY U/S 271AAA OF RS.19,69,000/-, MORE SO WHEN PENALTY WAS INITIATED & LEVIED BY LD. A.O. ONLY ON THE GROUND THAT MANNER OF EARNING UNDISCLOSED INCOME WAS NOT SUBSTANTIATED AND THUS, LD. CIT(A) HAS EXCEEDED 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 C ONFIRMING THE LEVY OF PENALTY U/S 271AAA, MORE SO PAYMENT OF TAXE S 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)/153A (1)(B) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) AT THE INCOME OF RS.1,96,29,030/-, PENAL TY PROCEEDINGS WERE INITIALED U/S 271AAA OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS MADE VOLUNTARY DECLARATION OF RS.30,00 ,000/- ON ACCOUNT OF JEWELLERY FOUND IN HIS POSSESSION, MADE A SURRENDER OF RS.18,00,000/- ON ACCOUNT OF UNACCOUNTED CASH FOUND AND SEIZED AND ASSESSEE HAS MADE VOLUNTARY DECLARATION OF RS.9 9,90,000/- ON ACCOUNT OF INCOME RELATING TO PROPERTY TRANSACTION. AO LEVIED THE PENALTY OF RS.19,69,000/- @ 10% OF THE UNDISCLOSED INCOME OF RS.1,96,90,000/- ON THE GROUND THAT THE ASSESSEE HA S FAILED TO ITA NO.4447/DEL./2016 3 SPECIFY AND JUSTIFY THE MANNER OF EARNING IN WHICH THE UNDISCLOSED INCOME HAS BEEN EARNED. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) 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. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) SHOWS THAT THE PENALTY HAS BEEN CONFIRMED BY HO LDING THAT THE ASSESSEE HAS NOT PAID TAXES AND PENALTY IN RESPEC T OF UNDISCLOSED INCOME IN DUE TIME, THE CONDITION FOR NON-LEVYING O F PENALTY U/S 271AAA HAS NOT BEEN FULFILLED WITH REGARD TO PAYMEN T OF TAXES BY THE ASSESSEE. HOWEVER, THE LD. AR FOR THE ASSESSEE CONTENDED THAT THEY HAVE DULY PAID THE TAXES AND INTEREST QUA THE UNDISCLOSED INCOME IN THIS CASE WITHIN DUE TIME AND REFERRED TO THE RETURN OF INCOME AND COMPUTATION OF INCOME AVAILABLE AT PAGES 1 TO 3 OF THE PAPER BOOK, WHEREIN TAXES AND INTEREST IS SHOWN TO HAVE BEEN DULY PAID. WHEN WE EXAMINE NOTICE OF DEMAND U/S 156, AV AILABLE AT PAGE 4 OF THE PAPER BOOK, DEMAND IS SHOWN AT NIL. SIMILARLY, IN ITA NO.4447/DEL./2016 4 FORM 26AS ANNEXED WITH THE INCOME-TAX RETURN OF THE ASSESSEE, DETAIL OF TAX PAID HAS BEEN DULY SHOWN, WHICH HAS N OT BEEN CONTROVERTED BY THE LD. SENIOR DR. 6. PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) SHOWS THAT SOMEHOW LD. CIT (A) HAS OMITTED TO ACCOU NT FOR THE DEPOSIT OF RS.27,70,110/- MADE BY THE ASSESSEE IN T HE BANK BEING TAX PAID ON THE DECLARED INCOME AND REACHED THE CON CLUSION TO CONFIRM THE PENALTY LEVIED BY THE AO, WHEREAS COMPU TATION OF INCOME AND FORM 26AS DULY SHOWS THAT THE SAID AMOUN T HAS BEEN PAID IN THE BANK ON 04.01.2010 WHICH IS WELL WITHIN TIME. 7. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT PENALTY IMPOSED IN THIS CASE I S NOT SUSTAINABLE, HENCE ORDERED TO BE DELETED. HOWEVER, IN CASE, REVENUE FINDS THAT THE ASSESSEE HAS NOT DEPOSITED T HE TAXES ALONG WITH INTEREST DUE WELL WITHIN TIME THEN REVENUE HAS LIBERTY TO FILE THE APPLICATION AS PER LAW TO RECALL THE ORDER. CO NSEQUENTLY, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 10 TH DAY OF JUNE, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 10 TH DAY OF JUNE, 2019/TS ITA NO.4447/DEL./2016 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.