ITO, New Delhi V. Shri Shanti Swaroop Batra, Delhi

ITA 4631/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7119 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 08-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINIT K AGARWAL
• Assessee Lawyers: F R MEENA
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

I.T.A .NO.-4631/DEL/2016 ITO VS SHANTI SWAROOP BATRA IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4631/DEL/2016 (ASSESSMENT YEAR-2009-10) ITO, WARD-61(3), E-2, CIVIC CENTRE, NEW DELHI ( APPELLANT) VS SHANTI SWAROOP BATRA, D-298, ANAND VIHAR, DELHI-110092. PAN-AAHPB5743N (RESPONDENT) ASSESSEE BY SH. F.R.MEENA, SR.DR REVENUE BY SH.VINIT K.AGARWAL, CA DATE OF HEARING 08 . 11 .2016 DATE OF PRONOUNCEMENT 03.01.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AS SAILING THE CORRECTNESS OF THE ORDER DATED 21.06.2016 OF CIT(A)-20, NEW DELHI PERT AINING TO 200910 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271D OF THE INCOME TAX ACT , 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT PENALTY PROCEEDINGS U/S 271D HAD BEEN INITIATED ALONGWITH PROCEEDINGS U/S 271(1)(C) ON A PROTECTIVE BASIS DURING THE ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT AS PER ASSESSEES OWN AD MISSION, THE CASH CREDITS REPRESENT LOAN TAKEN FROM OTHERS. 4. THAT THE APPELLANT CRAVES, LEAVE TO ADD, AMEND O R ALTER ANY OF THE GROUND(S) OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2. BOTH THE PARTIES WERE HEARD. LD. AR INVITING ATT ENTION TO THE ORDER DATED 21.06.2016 IN APPEAL NO. 184/201516 SUBMITTED THAT THE ISSUE OF LEVY OF PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) HAD BEEN CHALLENGED BY THE ASSESSEE BEFORE THE CIT(A). HOWEVER, THE DECISION OF THE CIT(A) IN UPHOLDING TH E PENALTY HAS NOT BEEN CHALLENGED IN APPEAL BY THE ASSESSEE AS THE SAID ORDER HAS BEEN A CCEPTED BY THE ASSESSEE. AS A RESULT OF THIS DECISION, IT WAS SUBMITTED BY THE LD.AR THE CI T(APPEALS) HAS QUASHED THE PENALTY ORDER U/S 271D. 3. AGGRIEVED BY THIS, THE REVENUE IS AN APPEAL BEFO RE THE ITAT. PAGE 2 OF 3 I.T.A .NO.-4631/DEL/2016 ITO VS SHANTI SWAROOP BATRA 4. THE LD. SR.DR SUBMITTED THAT THE FACTS NEED TO B E VERIFIED NAMELY THAT HAS THE ASSESSEE ACCEPTED THE PENALTY ORDER U/S 271(1)(C) W HICH HAS BEEN CONFIRMED BY THE CIT(A) OR HAS THE ASSESSEE AND CHALLENGED IT BEFORE THE I TAT. WITHOUT VERIFYING THIS FACT, IT WAS SUBMITTED THE ORDER CANNOT BE CONFIRMED. SUBJECT T O THE VERIFICATION OF THIS FACT, IT WAS HIS SUBMISSION THAT HE WOULD HAVE NO OBJECTION IF THE I MPUGNED ORDER IS UPHELD. 5. A PERUSAL OF THE FACTS AND RECORDS SHOW THAT AN AMOUNT OF RS.19 LAKHS WAS FOUND DEPOSITED IN CASH IN THE ASSESSEES ACCOUNT MAINTAI NED WITH PUNJAB & SINDH BANK, ANAND VIHAR DELHI DURING THE YEAR UNDER CONSIDERATION. O UT OF THIS, AN AMOUNT OF RS.13.27 LAKHS WAS FOUND TO BE UNEXPLAINED IN THE HAND OF THE ASSE SSEE BY THE AO LEADING TO THE ADDITION OF THE SAID AMOUNT UNDER SECTION 68 OF THE ACT AS U NEXPLAINED CASH CREDIT. THE SAID ADDITION IN THE QUANTUM APPEAL FILED BY THE ASSESSE E WAS UPHELD IN APPEAL BY THE COMMISSIONER OF INCOME TAX (A)-XXVIII VIDE ORDER DA TED 07.03.2013. 5.1. CONSIDERING THESE FACTS THE CIT(A) IN THE PEN ALTY PROCEEDINGS AS PER THE IMPUGNED ORDER DATED 21.06.2016 IMPOSED PENALTY U/S 271D HO LDING AS UNDER:- THE A.O HAD INITIATED THE PENALTY PROCEEDINGS UNDE R SECTION 271D IN THE ASSESSMENT ORDER ON PROTECTIVE BASIS AS HE HAS ADDE D THE AMOUNT OF RS.13.27 LAKHS UNDER SECTION 68 OF THE ACT AS UNEXPLAINED CA SH CREDIT. THE A.OS ACTION HAS FURTHER BEEN CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (A)-XXVIII, ORDER DATED 07.03.2013. THEREFORE, ONCE THE AMOUNT HAS BEEN HELD AS UNEXPLAINED UNDER SECTION 68 OF THE ACT, THE SAME C ANNOT BE SUBJECT T PROVISION OF SECTION 269SS OF THE ACT. THEREFORE, PENALTY UN DER SECTION 271D FOR VIOLATION OF SECTION 269SS OF THE ACT CANNOT BE SUSTAINED. I T WILL NOT BE OUT OF CONTEXT HERE TO MENTION THAT THE A.O. HAS ALREADY IMPOSED PENAL TY UNDER SECTION 271(1)(C) ON THE SAME AMOUNT. ACCORDINGLY, THE PENALTY UNDER SE CTION 271D OF THE ACT IS DELETED. APPELLANTS GROUND OF APPEAL IS ALLOWED. 6. ACCORDINGLY IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND CONSIDERING THE SUBMISSIONS OF THE PARTIES, I AM OF THE VIEW THAT THE CATEGORIC STATEMENT OF THE LD.AR ON BEHALF OF THE ASSESSEE THAT NO APPEAL AGAINST THE QUANTUM ORDER OR ORDER U/S 271(1)(C) OF THE CIT(A) HAS BEEN FILED SHOULD BE VE RIFIED BY THE ASSESSING OFFICER. THUS, ACCEPTING THE LD. SR. DRS REQUEST WHICH WAS NOT OB JECTED TO BY THE LD.AR ALSO, IT IS DEEMED APPROPRIATE TO RESTORE THE ISSUE FOR VERIFIC ATION TO THE ASSESSING OFFICER AND PAGE 3 OF 3 I.T.A .NO.-4631/DEL/2016 ITO VS SHANTI SWAROOP BATRA THEREAFTER AND PASS AN APPROPRIATE ORDER IN ACCORD ANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD OF JANUARY, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI