Jai Narayan Bajarang Lal Todi Trust , Ghaziabad V. ITO (E), Trust Ward-IV, New Delhi

ITA 4767/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5572 (ITAT-DELHI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.4767/DEL./2018 ASSESSMENT YEAR 2009-2010 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. PAN AAATJ7620F C/O. PRADEEEP & CO. TAX ADVOCATES, 7, NAVYUG MARKET, GHAZIABAD. U.P. VS., THE ITO (EXEMPTION), TRUST WARD-IV, NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SATYAJEET GOEL, C.A. & SMT. PRATEEK GUPTA, C.A. FOR REVENUE : SHRI S.L. ANURAGI, SR.DR DATE OF HEARING : 03.06.2019 DATE OF PRONOUNCEMENT : 03.06.2019 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-40, DELHI, DATED 03.04.2018, FOR THE A.Y. 2009-2010, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2 ITA.NO.4767/DEL./2018 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. 2. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. 3. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE A.O. IN THE SHOW CAUSE NOTICE DATED 30.12.2011 DID NOT SPECIFY AS TO FOR WHICH CHARGE PENALTY COULD BE LEVIED AGAINST THE ASSESSEE. SINCE THE NOTICE ITSELF IS INVALID, THEREFORE, NO PENALTY IS LEVIABLE AGAINST THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT THE A.O. IN THE PENALTY ORDER HAS INITIATED THE PENALTY PROCEEDINGS FOR CONCEALMENT OF FACTS. BUT THE A.O. LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. HE HAS RELIED UPON THE ORDER OF ITAT, DELHI SMC-BENCH IN THE CASE OF M/S. ELEVATE DEVELOPERS PVT. LTD., NEW DELHI VS. THE DCIT, CIRCLE-8(1), NEW DELHI IN ITA.NO.4299/DEL./2018, DATED 05.03.2019. 4. ON THE OTHER HAND, THE LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND ALSO SUBMITTED THAT FAILURE OF THE A.O. TO STRIKE-OFF COLUMN IN SHOW CAUSE NOTICE IS NO GROUND FOR DELETING THE PENALTY. THE LD. D.R. RELIED 3 ITA.NO.4767/DEL./2018 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. UPON THE ORDER OF ITAT, CHENNAI BENCH REPORTED IN TS-289- ITAT-2019-CHNY. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN THIS CASE, THE A.O. ISSUED SHOW CAUSE NOTICE BEFORE LEVY OF THE PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961, DATED 30.12.2011 IN WHICH THE A.O. HAS MENTIONED AS UNDER : HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION 1, 2, 3, 4 & 5. 5.1. THESE FACTS, THEREFORE, CLEARLY SHOW THAT NOTICE ISSUED BY THE A.O. FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT TO BE BAD IN LAW AS IT DID NOT SPECIFY IN WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE ENTIRE PENALTY PROCEEDINGS ARE, THEREFORE, VITIATED AND NO PENALTY IS LEVIABLE. ON THIS SCORE ITSELF, SIMILAR VIEW IS TAKEN BY HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S. SSAS EMERALD MEADOWS 73 TAXMANN.COM 241 AND THIS 4 ITA.NO.4767/DEL./2018 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. DECISION IS CONFIRMED BY THE HONBLE SUPREME COURT REPORTED IN 73 TAXMANN.COM 248. FURTHER, THE ITAT, DELHI SMC-BENCH IN THE CASE OF M/S. ELEVATE DEVELOPERS PVT. LTD., NEW DELHI VS. THE DCIT, CIRCLE-8(1), NEW DELHI (SUPRA), IN PARA 6.1 HELD AS UNDER : 6.1. IN THE PRESENT CASE, THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER INITIATED THE PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PARTICULARS OF INCOME. HOWEVER, LEVIED THE PENALTY FOR CONCEALING THE PARTICULARS OF INCOME. IN THE SHOW CAUSE NOTICE ISSUED BEFORE LEVY OF THE PENALTY, BOTH THE LIMBS OF SECTION 271(1)(C) OF THE INCOME TAX ACT HAVE BEEN MENTIONED. THEREFORE, THE NOTICE IS INVALID AND BAD IN LAW, WHICH RESULTED INTO VITIATING THE ENTIRE PENALTY PROCEEDINGS. THE SATISFACTION OF THE ASSESSING OFFICER IS ALSO DEFECTIVE AS NOTED ABOVE IN THE IMPUGNED ORDERS. THEREFORE, NO PENALTY IS LEVIABLE. I, ACCORDINGLY, SET ASIDE THE OTHERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 5 ITA.NO.4767/DEL./2018 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. 5.2. IN SIMILAR SET OF FACTS, THE ITAT, DELHI BENCHES ARE TAKING A CONSISTENT VIEW THAT IN SUCH CIRCUMSTANCES, LEVY OF PENALTY IS INVALID. SINCE THE SHOW CAUSE NOTICE IS INVALID DUE TO THE ABOVE REASON AND AS SUCH THE ENTIRE PENALTY PROCEEDINGS ARE VITIATED. THUS, NO PENALTY IS LEVIABLE AGAINST THE ASSESSEE. THE DECISIONS RELIED UPON BY THE LD. D.R. WOULD NOT SUPPORT THE CASE OF THE REVENUE, IN VIEW OF THE ABOVE, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 6. IN THE RESULT, APPEAL OF ASSESSEE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 03 RD JUNE, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE 6 ITA.NO.4767/DEL./2018 M/S. JAI NARAYAN BAJARANG LAL TODI TRUST, GHAZIABAD. //BY ORDER// ASST. REGISTRAR : ITAT : DELHI BENCHES : DELHI.