ITO, New Delhi V. Sh. Balbir Singh, New Delhi

ITA 4576/DEL/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6966 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 14-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SUMIT GOE L; S RAJ KUMAR GUPTA
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 271D

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4576/DEL./2011 (ASSESSMENT YEAR : 2007-08) ITO, WARD 26 (3), VS. SHRI BALBIR SINGH, NEW DELHI. C/O CHAUDHARY PRADIP & CO. 100/1, GAUTAM NAGAR, NEW DELHI. (PAN : AKDPS1094D) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI RAJ KUMAR GUPTA & SUMIT GOEL, CAS REVENUE BY : SHRI S.K. JAIN, SENIOR DR DATE OF HEARING : 19.01.2017 DATE OF ORDER : 24.01.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : PRESENT APPEAL WAS ORIGINALLY DECIDED BY ITAT, DEL HI BENCH A VIDE ORDER DATED 12.07.2013 EX-PARTE AS NONE AP PEARED ON BEHALF OF THE ASSESSEE. SUBSEQUENTLY, ON THE BASIS OF ORDER DATED 17.06.2016 PASSED BY THE TRIBUNAL ON THE BASIS OF M ISC. APPLICATION FILED BY THE ASSESSEE, THE ORDER DATED 12.07.2013 S TOOD RECALLED AND NOW THE PRESENT APPEAL IS BEING DECIDED AFRESH. ITA NO.4576/DEL./2011 2 2. THE APPELLANT, INCOME TAX OFFICER, WARD 26 (3), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 25.08.2011, PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- XXIV, NEW DELHI UNDER SECTION 271D OF THE INCOME-TAX ACT, 196 1 (FOR SHORT THE ACT) QUA THE ASSESSMENT YEAR 2007-08 ON THE G ROUNDS INTER ALIA THAT :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN CANCELLING THE PENALTY IMPOSED U/S 271D OF THE I.T. ACT, 1961 AS THE CIT (A) HAS IGNORED THE INCONSISTENCIES IN THE SUBMISSIONS MADE BY THE ASSE SSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN ACCEPTING SELF SERVING DOCUMENTS N OT CORROBORATED BY CROSS EXAMINATION. 3. SET ASIDE THE ORDER OF THE CIT (A) AND RESTORE T HE MATTER BACK TO THE AO TO REEXAMINE FRESH EVIDENCE I N A HOLISTIC MANNER. 3. BRIEFLY STATED FACTS OF THIS CASE ARE : ASSESSME NT OF THE ASSESSEE FOR THE AY 2007-08 WAS COMPLETED UNDER SEC TION 143(3) OF THE ACT VIDE ORDER DATED 04.12.2009 AND IT WAS N OTICED THAT THE ASSESSEE HAS TAKEN LOANS IN CASH FROM SIX PARTIES T O THE EXTENT OF EXCEEDING RS.20,000/- EACH IN VIOLATION OF SECTION 269SS OF THE ACT. THEN, PENALTY PROCEEDINGS WERE INITIATED AND ASSESSEE WAS CALLED UPON TO EXPLAIN AS TO WHY PENALTY U/S 271D B E NOT IMPOSED ON HIM FOR ACCEPTING LOANS IN CASH IN VIOLATION OF SECTION 269SS. ASSESSEE MADE SUBMISSION THAT HE HAS TAKEN ADVANCES ONLY FOR ITA NO.4576/DEL./2011 3 AGRICULTURAL PURPOSES AND AS SUCH, SECTION 269SS IS NOT APPLICABLE AS NONE OF THE LENDERS WERE CHARGEABLE TO TAX UNDER THE ACT. BEING NOT SATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE, AO CAME TO THE CONCLUSION THAT SINCE FROM THE RETURN O F INCOME FILED BY THE ASSESSEE FOR AY 2007-08 AND PRECEDING YEARS, IT IS CLEAR THAT HE HAS BEEN DERIVING INCOME FROM PENSION, BANK INTE REST AND INCOME FROM PROPERTY BUSINESS WHICH IS CHARGEABLE T O TAX UNDER THE ACT AND AS SUCH, HIS CASE IS NOT COVERED UNDER SECOND PROVISO TO SECTION 269SS AND IMPOSED THE PENALTY OF RS.26,0 0,000/-. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS ALLOWED THE APPEAL. FEEL ING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 5. 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. 6. PERUSAL OF THE ORDER PASSED BY AO AS WELL AS LD. CIT (A) GOES TO PROVE THAT BOTH OF THEM HAVE NOT BROUGHT ON RECORD ANY DOCUMENT/EVIDENCE TO PROVE THE CONTENTION OF THE AS SESSEE THAT HE HAS TAKEN THE LOAN FROM AGRICULTURISTS WHOSE INCOME WAS NOT CHARGEABLE TO TAX AND THE SAID LOANS WERE USED FOR PURCHASING THE ITA NO.4576/DEL./2011 4 LAND BY THE ASSESSEE. LD. CIT (A) HAS REFERRED IN PARA 4.1 THAT THE ASSESSEE HAS PURCHASED DEMAND DRAFT FOR AN AMOUNT O F RS.39,25,000/- TO MAKE PAYMENTS TO THE VENDORS BUT HAS NOT PREFERRED TO BRING ON RECORD THE SALE DEED EXECUTED BY THE ASSESSEE IN HIS FAVOUR TO MAKE OUT THE REASONABLE CAUSE FOR THE ASSESSEE TO AVAIL OF A LOAN OF RS.26,00,000/- FROM SIX PERSONS BY WAY OF CASH IN VIOLATION OF PROVISIONS CONTAINED U/S 269SS. TO OUR MIND, BOTH THE AO AS WELL AS CIT (A) HAVE PASSED CRYPTIC ORDER WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE ORDER PASSED BY CIT (A) IS HEREBY SET ASIDE AND FILE IS ORDERED TO BE RESTORED TO THE AO TO DECIDE AFRESH BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE PARTIES IN THE LIGHT OF THE PLEADINGS MADE BY THE A SSESSEE AND IN THE LIGHT OF SECTION 269SS. CONSEQUENTLY, APPEAL FILED BY THE REVENUE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2017. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBE R DATED THE 24 TH DAY OF JANUARY, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXIV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.