M/s Virender Kumar Gupta, Gurgaon V. DCIT, New Delhi

ITA 4635/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4762 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 14-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Principle of natural justice; Reasonable cause
• Section: 153A

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI I.C.SUDHIR , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 4635/DEL/2015 (ASSESSMENT YEAR: 2002 - 03 ) VIRENDER KUMAR GUPTA, H. NO. 92, SECTOR - 5, GURGAON PAN:ABJPG4332M VS. DCIT, CENTRAL CIRCLE - 15( CENTRAL CIRCLE - 14) NEW DELHI (APPELLANT) (RESPONDENT) ITA NO.4634/DEL/2015 (ASSESSMENT YEAR: 2008 - 09) MDLR CARGO PVT LTD, FLAT NO. 4 - R - R, APARTMENT, 3 - 4, MANGLAPURI, MEHRAULI, NEW DELHI PAN:AAFCM0844E VS. DCIT, CENTRAL CIRCLE - 15 (CENTRAL CIRCLE - 14), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH KUMAR KAMAL, ADV REVENUE BY: SHRI ANSHU PRAKASH, SR. DR DATE OF HEARING 06/09 / 2017 DATE OF PRONOUNCEMENT 13 / 09 / 2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. BOTH THE ABOVE APPEALS REFERRED TO A SIMILAR GROUP INVOLVING SIMILAR ISSUE OF LIVING OF PENALTY UNDER SECTION 271 (1) (B) OF THE INCOME TAX ACT OF RS. 20,000 LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT (A) , THEREFO RE THEY ARE DISPOSED OF BY THIS COMMON ORDER. ITA NO . 4635/DEL/2015/ ASSESSMENT YEAR 2002 03 IN CASE OF VIRENDER KUMAR GUPTA 2. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XXVI, NEW DELHI DATED 11.05.2015 FOR THE ASSESSMENT YEAR 2002 - 03. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXVI, NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY OF RS. 20,000/ - U/S 271(L)(B) OF THE ACT. PAGE 2 OF 4 2. THAT WHILE UPHOLDING THE LEVY OF PENALTY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT ORDER LEVYING PENALTY WAS BASED ON FINDINGS CONTRARY TO THE ORDER OF ASSESSMENT AND, OVERLOOKING THE REPLY FURNISHED BY THE APPELLAN T DURING THE PENALTY PROCEEDINGS AND, THEREFORE UNTENABLE IN LAW. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILED TO APPRECIATE THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE APPELLANT AND, AS SUCH PENALTY SUSTAINED IS ILLEGAL, INVALID AND UNTENABLE. 4. THAT ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OTHERWISE ALSO BASED ON FACTUAL MISAPPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND, COMPLETE MISINTERPRETATION OF THE PROVISIONS CONTAINED IN SECTION 2 71(L)(B) OF THE ACT. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS OTHERWISE TOO CONFIRMED THE PENALTY WITHOUT PROVIDING FAIR, REASONABLE AND MEANINGFUL OPPORTUNITY AND AS SUCH ORDER PASSED IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AN D, THEREFORE A NULLITY. 4. ASSESSEE APPELLANT IS AN INDIVIDUAL DRAWING INCOME FROM SALARY FROM STATE BANK OF INDIA AND M/S MDL. R. AIRLINES PRIVATE LIMITED. A SEARCH WAS CONDUCTED THE IN THE CASE OF THE ASSESSEE ON 31/01/2008. THEREFORE, THE NOTICE UNDER S ECTION 153A WAS ISSUED ON 18/12/2008 AND 13/07/2009. THE ASSESSMENT WAS FRAMED UNDER SECTION 153A ON 2 9/12/2009 AT AN INCOME OF RS. 3 10433/ - . SUBSEQUENTLY THE ASSESSEE PREFERRED AN APPLICATION UNDER SECTION 264 OF THE INCOME TAX ACT ON 28/06/2010 BEFORE THE CIT WHO WIDE ORDER DATED 16/03/2012 DISPOSED OFF THE APPLICATION OF THE ASSESSEE RESTORING BACK TO THE FILE OF THE LD. ASSESSING OFFICER. THEREFORE, THE ASSESSMENT WAS AGAIN TAKEN UP FOR REASSESSMENT. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE LD. AO ISSUED SEVERAL NOTICES TO THE ASSESSEE WHICH REMAINED ON COMPLIED WITH, AND THEREFORE PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) WERE INITIATED. IN RESPONSE TO THE NOTICE THE ASSESSEE SUBMITTED ITS REPLY ON DATED ON 22/07/2013. T HE LD. AO REJECTED THE EXPLANATION OF THE ASSESSEE AND LEVIED A PENALTY OF RS. 20,000 / - UPON THE ASSESSEE FOR NON - COMPLIANCE. THE PENALTY WAS CONTESTED BEFORE THE LD. CIT (A) , WHO CONFIRMED THE PENALTY WIDE ORDER DATED 11/05/2015, AS NONE APPEARED BEFORE HI M. THEREFORE, ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT IN IDENTICAL FACTS AND CIRCUMSTANCES THE 271(1)(B) WERE DELETED BY THE COORDINATE BENCH ON SEVERAL ASSESSEE AND THEREFORE IT WAS SUBMITTED THAT AS THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SIMILAR SAME MAY BE DELETED IN THE CASE OF THE ASSESSEE. ON THE MERITS OF THE CASE HE RELIED UPON THE REPLY SUBMITTED BEFORE THE LD. ASSESSING OFFICER ON 24/06/2013. 6. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTESTED TH E CLAIM OF THE ASSESSEE AND SUBMITTED THAT ASSESSEE HAS NOT MADE HIMSELF AVAILABLE ON RESPECTIVE PAGE 3 OF 4 DATES AND THEREFORE THE PENALTY HAS RIGHTLY BEEN LEVIED FOR NON - COMPLIANCE OF THE NOTICES. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE O RDERS OF THE LOWER AUTHORITIES WITH RESPECT TO THE PENALTY PROCEEDINGS. ON THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE IN CASE OF JAWALA PRASADA AGARWAL IN ITA NO. 4392 TO 4398/DEL/ 2015 FOR ASSESSMENT YEAR 2002 - 03 TO 2008 - 09 PENALTY UNDER SECTION 2 71(1) (B) WAS DELETED VIDE ORDER DATED 25/08/2017. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT HOW THE FACTS AND CIRCUMSTANCES IN THE ISSUE DECIDED BY THE COORDINATE BENCH DIFFERS FROM THE CASE BEFORE US. IN VIEW OF THIS WE RESPECTFULLY FOLLOWIN G THE DECISION OF THE COORDINATE BENCH IN CASE OF JAWALA PRASADA AGARWAL (SUPRA) , REVERSING THE FINDING OF THE LD. CIT ( A ) , WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS. 20,000 / - LEVIED UNDER SECTION 271 (1) (B) OF THE INCOME TAX ACT. 8. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO. 4634/DEL/2015 ASSESSMENT YEAR 2008 - 09 M/S MDLR CARGO PRIVATE LIMITED 9. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XXVI, NEW DELHI DATED 06.05.2015 FOR THE ASSESSMENT YEA R 2008 - 09. 10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXVI, NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY OF RS. 20,000/ - U/S 271 (1 )(B) OF THE ACT. 2 THAT WHILE UPHOLDING THE LEVY OF PENALTY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT ORDER LEVYING PENALTY WAS BASED ON FINDINGS CONTRARY TO THE ORDER OF ASSESSMENT AND, OVERLOOKING THE REPLY FURNISHED BY THE APPELLANT D URING THE PENALTY PROCEEDINGS AND, THEREFORE UNTENABLE IN LAW. 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILED TO APPRECIATE THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE APPELLANT AND, AS SUCH PENALTY SUSTAINED IS ILLEGAL, INVALID AND UNTENABLE. 2.2 THAT ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OTHERWISE ALSO BASED ON FACTUAL MISAPPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND, COMPLETE MISINTERPRETATION OF THE PROVISIONS CONTAINED IN SECTION 2 71(L)(B) OF THE ACT. 3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS OTHERWISE TOO CONFIRMED THE PENALTY WITHOUT PROVIDING FAIR, REASONABLE AND MEANINGFUL OPPORTUNITY AND AS SUCH ORDER PASSED IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND , THEREFORE A NULLITY. 11. BOTH THE PARTIES CONFIRMED BEFORE US THAT THE FACTS AND CIRCUMSTANCES LEADING TO THE PENALT Y PROCEEDINGS UNDER SECTION 271(1) (B) ARE SIMILAR TO THE APPEAL OF MR VIRENDRA PAGE 4 OF 4 GUPTA, EXCEPT THE ASSESSMENT YEAR. THEY SUBMITTED THAT THERE CONTENTIONS ARE ALSO SIMILAR. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES WITH RESPECT TO THE PENALTY PROCEEDINGS. ON THE IDENTICAL FACTS A ND CIRCUMSTANCES OF THE CASE IN CASE OF JAWALA PRASADA AGARWAL IN ITA NO. 4392 TO 4398/DEL/ 2015 FOR ASSESSMENT YEAR 2002 - 03 TO 2008 - 09 PENALTY UNDER SECTION 271(1) (B) WAS DELETED VIDE ORDER DATED 25/08/2017. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT HOW THE FACTS AND CIRCUMSTANCES IN THE ISSUE DECIDED BY THE COORDINATE BENCH DIFFERS FROM THE CASE BEFORE US. IN VIEW OF THIS WE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH IN CASE OF JAWALA PRASADA AGARWAL (SUPRA) , REVERSING THE FINDING OF THE LD. CIT (A) , WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS. 20,000 LEVIED UNDER SECTION 271 (1)(B) OF THE INCOME TAX ACT. 13. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. 14. IN THE RESULT, BOTH ARE THE APPEALS OF THE ASSESSEE AS STATED ABOVE ARE ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 1 3 / 0 9 / 2017 . - S D / - - S D / - ( I.C.SUDHIR ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DA TED: 1 3 / 0 9 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI