ACIT, New Delhi V. Sh. Prem Kumar Arora, New Delhi

ITA 4643/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74006 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV BINDAL
• Keywords: Loose papers; Document seized; Documents seized
• Section: 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI) BEFORE SHRI U. B. S. BEDI, JUDICIAL MEMBER AND SHRI J. S. REDDY , ACCOUNTANT MEMBER I.T.A. NO. 4643 /DEL/2013 (ASSESSMENT YEAR 2005-06) ACIT, CC-25, VS. SH. PREM KUMAR ARORA, NEW DELHI. PROP. NANAK ENTERPRISES, 440, KATRA ISHWAR BHAWAN, KHARI BAOLI, DELHI PAN/GIR NO.: AAHPK9790L (APPELLANTS) (RESPONDENTS) ASSESSEE BY : MS. MEENAKSHI VOHRA, SR. DR DEPARTMENT BY: SHRI SANJEEV BINDAL, AR ORDER PER U B S BEDI, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-I, NEW DELHI DATED 23.05.2013 RELEVANT FOR T HE ASSESSMENT YEAR 2005-06 WHEREBY, THE DEPARTMENT HAS CHALLENGED DELE TION OF PENALTY OF RS.5,35,662/- IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT. 2. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER ORDER OF ITAT WHICH HAS BEEN FOLLOWED BY LD. CIT(A) TO DELETE THE IMPUGNED PENALTY. SO, BY NARRATING THE FACTS AS CO NTAINED IN THE SAID ORDER, IT WAS SUBMITTED THAT THERE WAS INCOME TAX SEARCH O N THE ASSESSEE AT HIS RESIDENTIAL AS WELL AS BUSINESS PREMISES ON 22.11.2 006 WHEN CERTAIN DOCUMENTS / LOOSE PAPERS WERE FOUND IN HIS POSSESSI ON AND THOSE WERE I.T.A. NO. 4643/DEL/2013 2 SEIZED. IN RESPONSE TO THE NOTICES ISSUED U/S 153A , THE ASSESSEE FILED HIS RETURNS OF INCOME FOR THE ASSESSMENT YEARS 2001-02 TO 2006-07 DECLARING ADDITIONAL INCOME IN EACH OF THOSE YEARS EXCEPT FOR THE ASSESSMENT YEAR 2003-04 TOWARDS UNDISCLOSED INCOME FROM TRADING AND COMMISSION ON SPICES BASED ON THE ENTRIES RECORDED IN THE SEIZED DOCUMENTS/LOOSE PAPERS, I.E. IN ADDITION TO THE TOTAL INCOME ORIGINALLY DEC LARED IN THE RETURNS FILED U/S 139 BY HIM. THE ASSESSMENT WAS FRAMED U/S 153A FOR THOSE YEARS VIDE ORDER DATED 31.12.2008 MAKING CERTAIN ADDITIONS OVER AND ABOVE THE INCOME DECLARED IN THE RETURNS FILED U/S 153A EXCEPT FOR T HE ASSESSMENT YEAR 2004- 05. HOWEVER, AFTER THE ORDER OF F BENCH OF ITAT, NEW DELHI DATED 30.09.2011, THERE WAS NO DIFFERENCE IN THE AMOUNT O F ASSESSED INCOME U/S 153A AND RETURNED INCOME U/S 153A OF THE I. T. ACT, 1961. THE ASSESSEE FOR THE SAID ASSESSMENT YEARS HAD GIVEN DETAILS AND COM PLETE SUMMARY OF INCOME DECLARED ORIGINALLY, ADDITIONAL INCOME DECLA RED U/S 153A AND TOTAL DECLARED INCOME IN THE RETURNS U/S 153A, ASSESSED U /S 153A, RELIEF GRANTED BY ITAT AND DEPICTING TOTAL INCOME AFTER RELIEF FOR ALL THE SIX ASSESSMENT YEARS. IT WAS CONTENDED BEFORE THE FIRST APPELLATE AUTHORITY THAT NEITHER THE SOURCE OF ADDITIONAL INCOME OFFERED IN ALL THE ASSE SSMENT YEARS WERE THE SAME I.E. TOWARDS ADDITIONAL INCOME FROM TRADING AN D BUSINESS OF SPICES. IT WAS ALSO SUBMITTED THAT PENALTY WAS IMPOSED BY THE A.O. FOR THE ABOVE SAID ASSESSMENT YEARS BASICALLY ON THE GROUND THAT THE A SSESSEE DID NOT FALL WITHIN THE PARAMETERS OF IMMUNITY FROM LEVY OF PENALTY U/S 271(1)(C) AS CONTAINED IN EXPLANATION (5) OF THIS SECTION SO FAR AS ADDITI ONAL INCOME DECLARED BY THE ASSESSEE WERE CONCERNED. IT WAS ALSO FURTHER BROUG HT TO THE NOTICE OF LD. CIT(A) THAT FOR THE ASSESSMENT YEAR 2004-05, PENALT Y IMPOSED ON 29.07.2009 WAS CHALLENGED AND THE MATTER CAME UP TO ITAT LEVEL AND UNDER SIMILAR CIRCUMSTANCES, THE SAME HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER I.T.A. NO. 4643/DEL/2013 3 DATED 09.03.2012. THE A.O. IMPOSED PENALTY FOR REM AINING YEARS WITHOUT FOLLOWING THE SAID ORDER WHERE SUCH ORDER HAD ALREA DY BEEN PASSED. SINCE, THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE, IT WAS THUS PLEADED THAT LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE PENALTY AND HIS ORDER BEING LEGALLY VALID AND BEING A COVERED MATTER, IMP UGNED ORDER MAY BE CONFIRMED. LD. COUNSEL FOR THE ASSESSEE HAS ALSO F ILED COPY OF ITAT ORDER DATED 09.03.2012 IN THE CASE OF THE ASSESSEE FOR AS SESSMENT YEAR 2004-05 AND PLEADED THAT FOLLOWING THE SAID ORDER, APPEAL O F THE REVENUE MAY BE DISMISSED. 2. LD. D.R. WHILE RELIED UPON THE ORDER OF THE A.O. , HAS PLEADED FOR SETTING ASIDE THE ORDER OF LD. CIT(A) AND RESTORING THAT OF THE A.O. LD. D.R. WAS SPECIFICALLY ASKED TO COMMENT WHETHER THE ISSUE INVOLVED AND THE FACTS OF THE CASE IN HAND AND FOR THE ASSESSMENT YEAR 200 4-05 WERE SIMILAR, HE COULD NOT CONTRADICT THE SAME AND JUST RELIED UPON THE ORDER OF THE A.O. 3. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MAT ERIAL ON RECORD AS WELL AS PRECEDENT RELIED UPON BY THE LD. COUNSEL FO R THE ASSESSEE WHO MAINLY CONTENDED THAT THE ISSUE IS SQUARELY COVERED BY EAR LIER DECISION OF ITAT WHEN ALL THE FACTS AND CIRCUMSTANCES OF THE CASE IN HAND AND THE CASE CONSIDERED BY THE TRIBUNAL FOR ASSESSMENT YEAR 2004 -05 WERE SIMILAR AND IDENTICAL, SO PENALTY IS NOT LEVIABLE. 3.1 AFTER HAVING CONSIDERED THE RIVAL ARGUMENTS IN THE LIGHT OF THE PRECEDENT RELIED UPON BY LD. CIT(A), WE FIND THAT C ONCLUSION HAS BEEN DRAWN IN PARA 4.2 OF LD. CIT(A)S ORDER WHICH IS R EPRODUCED BELOW: I HAVE CONSIDERED THE ASSESSMENT AND PENALTY ORDER S, ORDER OF THE ITAT AND THE SUBMISSIONS FILED. THE FACTS OF THE C ASE ARE THE SAME A FOR ASSESSMENT YEAR 2004-05, WHEREIN THE PENALTY IM POSED U/S 271(1)(C) WAS DELETED BY HONBLE ITAT VIDE ITS ORDE R DATED 09.03.2012 CANCELLED THE ORDER OF CIT(A) CONFIRMING THE PENALTY AND I.T.A. NO. 4643/DEL/2013 4 DELETED THE SAID PENALTY. IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN UNION OF INDIA VS KAMLAKSHI FINANCE CORP. LTD. (AIR 1992 S.C. 711) AND KHALID AUTOMOBILES VS UNION OF INDIA (4SCC (SUPPL.) 653) THAT THE DECISION OF THE JURISDICTIONAL HIGH C OURT AND THE TRIBUNAL ARE BINDING ON THE INCOME-TAX AUTHORITIES WITHOUT ANY RESERVATION. FOLLOWING THE DECISION OF THE HONBLE ITAT IN THE APPELLANTS OWN CASE, THE GROUND OF APPEAL IS TO BE ALLOWED. 4. SINCE, NO CONTRARY MATERIAL OR EVIDENCE HAS BEEN PRODUCED BY LD. D.R., WE CONCUR WITH THE DECISION OF LD. CIT(A) AND CONFIRM HIS ACTION TO DELETE THE PENALTY AND DISMISS THE APPEAL OF THE RE VENUE. 5. AS A RESULT, THE APPEAL OF THE REVENUE GETS DISM ISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JAN., 2014. SD./- SD./- (J. S. REDDY) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 29 TH JAN., 2014. SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXV, NEW DELHI AR, ITAT, 5. CIT(ITAT), NEW DELHI NEW DELHI