RMP Holding (P) Ltd., New Delhi V. ITO, Ward- 20(3), New Delhi

ITA 4480/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1941 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 13-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SURESH K GUPTA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4480/DEL/2018 (ASSESSMENT YEAR-2006-07) RMP HOLDING (P) LTD., 138C, BLOCK-B, GROUP-4, DILSHAD GARDEN, NEW DELHI. PAN NO. AAACR5533N (APPELLANT) VS ITO WARD 20(3) NEW DELHI. (RESPONDENT) APPELLANT BY SHRI SURESH K. GUPTA, CA RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 23.04.2018 OF THE LD. CIT(A), NEW DELHI RELEVANT TO ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS: - 1. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACTS IN UPHOLDING THE IMPUGNED PENALTY ORDER PASSED BY LD. AO AS THE SAME HAS BEEN PASSED FOR CONCEALING/FURNISHING INACCURATE PARTICULARS OF INCOME BY THE APPELLANT AND MENTIONING OF ALTERNATIVE DEFAULTS SH OWS THAT AO FAILED TO ESTABLISH PRECISE DEFAULT FOR WHICH PENALTY HAS BEE N LEVIED AND THERE IS IN AMBIGUITY IN THE FINDING WITH REGARD TO THE DEFA ULT FOR WHICH PENALTY IS LEVIED. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING IMPOSITION OF PENALTY U/S 271(1)(C) FOR ALTERNATIVE DEFAULTS OF C ONCEALING/FURNISHING INACCURATE PARTICULARS OF INCOME, WHEREAS IN THE AS SESSMENT ORDER DEFAULT OF FURNISHING INACCURATE PARTICULARS THEREB Y CONCEALING TRUE TAXABLE INCOME IS MENTIONED, WHICH HAS DIFFERENT IN TENT AND SUBSTANCE AND DEFAULT OF CONCEALING INACCURATE PARTICULARS OF INCOME IS NO DEFAULT FOR WHICH ANY PENALTY COULD BE LEVIED. 3. THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N UPHOLDING THE IMPUGNED ORDER OF PENALTY PASSED U/S 271(1)(C) OF T HE ACT ON THE BASIS OF THE SHOW CAUSE NOTICE DATED 26.03.2014 WHERE THE RE IS AMBIGUITY ABOUT THE DEFAULT ATTRIBUTABLE TO THE APPELLANT AS PER SHOW CAUSE NOTICE. 4. THE LD. CIT(A) HAS ERRED ON THE FACTS AND CIRCUMSTA NCES OF THE CASE IN CONFIRMING THE ORDER OF PENALTY DISREGARDING THE FA CT THAT THE ADDITIONS DATE OF HEARING 19/11/2018 DATE OF PRONOUNCEMENT 19/11/2018 ITA NOS. 4480/D/2018 A.Y. 2006-07 RMP HOLDING (P) LTD. 2 ON WHICH THE PENALTY IS LEVIED ARE NOT TENABLE UNDE R LAW AND NO PENALTY U/S 271(1)(C) CAN BE LEVIED ON THE ADDITIONS WHICH ARE LEGALLY UNASSAILABLE. 5. THE APPELLANT CRAVES LEAVE TO ADD, DELETE, MODIFY/A MEND THE ABOVE GROUNDS OF APPEAL WITH THE PERMISSION OF THE HONBL E APPELLATE AUTHORITY. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, LD. AR FOR THE ASSESSEE DRAW MY ATTENTION TOWARDS THE GROUNDS RAISED BY THE ASSESSEE BEFORE T HE LD. FIRST APPELLATE AUTHORITY, ESPECIALLY THE GROUND NO. 4 IN WHICH THE ASSESSEE HAS CHALLENGED THE AMBIGUITY IN THE SHOW CAUSE NOT ICE ISSUED BY THE AO U/S. 271(1) OF THE INCOME TAX ACT, 1961. HE FUR THER SUBMITTED THAT LD. CIT(A) HIMSELF HAS REPRODUCED THE GROUND N O. 4 AT PAGE NO. 6 VIDE PARA NO. 2.3 OF THE IMPUGNED ORDER, BUT HAS NO T GIVEN ANY FINDING ON THE SAME WHICH IS CONTRARY TO LAW AND FACTS ON FILE. HENCE, HE REQUESTED THAT ISSUE INVOLVED IN GROUND NO. 4 RAISE D BEFORE THE LD. CIT(A) AND ALSO GROUND NO. 1 & 2 RAISED IN THE INS TANT APPEAL MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DI RECTIONS TO PASS A SPEAKING ORDER ON THE SAME. 4. LD. DR DID NOT OBJECT TO THE PROPOSITION OF THE LD. AR OF THE ASSESSEE, BUT HOWEVER, HE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE FORM NO. 35 WHERE IN THE ASSESSEE HAS RAISED THE GROUNDS BEFORE THE LD. CIT(A) IN AP PELLATE STAGE. I FIND THAT ASSESSEE BEFORE THE LD. CIT(A) HAS RAISED FOLL OWING FOUR GROUNDS:- 1. ORDER UNDER APPEAL IS BAD IN LAW AND IS AGAINST FACTS OF THE CASE. 2. THE ORDER UNDER APPEAL IS NOT TENABLE UNDER LAW AS THE SAME HAS BEEN PASSED FOR CONCEALING / FURNISHIN G ITA NOS. 4480/D/2018 A.Y. 2006-07 RMP HOLDING (P) LTD. 3 INACCURATE PARTICULARS OF INCOME BY THE APPELLANT A ND MENTIONING OF ALTERNATIVE DEFAULT SHOWS THAT AO FA ILED TO ESTABLISH PRECISE DEFAULT FOR WHICH PENALTY HAS BEEN LEVIED AND THERE IS AMBIGUITY IN THE FINDING WITH R EGARD TO THE DEFAULT FOR WHICH PENALTY IS LEVIED. 3. THE AO ERRED IN LAW AND ON FACTS IN IMPOSING PE NALTY U/S. 271(1) FOR ALTERNATIVE DEFAULTS OF CONCEALING / FURNISHING INACCURATE PARTICULARS OF INCOME WHEREAS IN THE ASSESSMENT ORDER DEFAULT OF FURNISHING INACCURA TE PARTICULARS THEREBY CONCEALING TRUE TAXABLE INCOME IS MENTIONED, WHICH HAS DIFFERENT INTENT AND SUBSTANCE AND DEFAULT OF CONCEALING INACCURATE PARTICULARS OF INCOME IS NO DEFAULT FOR WHICH ANY PENALTY COULD BE LEVIED. 4. THE AO HAS ERRED BOTH ON FACTS AND IN LAW IN PAS SING THE IMPUGNED ORDER OF PENALTY ON THE BASIS OF THE SHOW CAUSE NOTICE DATED 26.3.2014 WHERE THERE IS AMBIGUITY ABOUT THE DEFAULT ATTRIBUTABLE TO THE APPELLANT AS PER SHOW CAUSE NOTICE. 5.1 AFTER PERUSING THE AFORESAID GROUNDS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) IN FORM NO. 35, I FIND CONSID ERABLE COGENCY IN THE CONTENTION OF THE LD. AR FOR THE ASSESSEE THAT THE GROUND NO. 4 AS AFORESAID BEFORE THE LD. CIT(A) WHEREIN, THE ASSES SEE HAS CHALLENGED THE AMBIGUITY IN THE SHOW CAUSE NOTICE ISSUED BY TH E AO U/S. 271(1)(C) OF THE ACT. I NOTE THAT LD. CIT(A) HIMSELF HAS REP RODUCED THE GROUND NO. 4 AT PAGE NO. 6 VIDE PARA NO. 2.3 OF THE IMPUGN ED ORDER, BUT HAS NOT GIVEN ANY FINDING ON THE SAME WHICH IS CONTRARY TO LAW AND FACTS ON FILE. THEREFORE, ASSESSEE HAS RAISED THE SAME GROUN DS VIDE GROUND NO. 1 & 2 BEFORE THE TRIBUNAL. IN VIEW OF ABOVE, IN MY CONSIDERED OPINION, THE GROUND NO. 4 RAISED BY THE ASSESSEE BEFORE TH E LD. CIT(A), AS AFORESAID AND GROUND NO. 1 & 2 RAISED BEFORE THE TR IBUNAL, AS CITED ITA NOS. 4480/D/2018 A.Y. 2006-07 RMP HOLDING (P) LTD. 4 ABOVE NEEDS TO BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO PASS A SPEAKING ORDER ON THE SAME. HENCE, I SET ASIDE THE SAME TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE SAME AND PASS A SPEAKING ORDER THEREON AND GIVE PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19.11.2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 19/11/2018 KAVITA/SRBHATNAGAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI