Super Growth Construction Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4784/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7166 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 11-07-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 22-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2: NEW DELHI BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER ITA NO.:- 4784/DEL /2015 ASSESSMENT YEAR: 2003-04 SUPER GROWTH CONSTRUCTION PVT. LTD., M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI 110 001 PAN AABCS7168M VS. ACIT CENTRAL CIRCLE-32, E-2, ARA CENTRE, JHANDEWALAN EXTENSION NEW DELHI 110 055. (APPELLANT) (RESPONDENT) O R D E R PER P.K. BANSAL, A. M. THIS APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF THE LD. CIT(A) DATED 27.3.2015. THE ONLY ISSUE INVO LVED IN THIS APPEAL RELATES TO THE SUSTENANCE OF THE PENALTY AMOUNTING TO RS. 1,17,230/- BY THE LD. CIT(A), IMPOSED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT. 2. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. I NOTICE THAT IN THIS CASE THE AO LEVIED THE PENALTY ON THE ASSESSEE BY : SHRI RAVI PRATAP MALL, ADV. DEPARTMENT BY : SHRI DEEPAK GARG, SR. DR DATE OF HEARING 11/07/2016 DATE OF PRONOUNCEMENT 11/07/2016 ITA NO. 4784/DEL/2012 2 ASSESSEE IN RESPECT OF TAX TO BE EVADED ON AN INCOM E OF RS. 3,18,994/- BY HOLDING AS UNDER :- IN VIEW OF THESE FACTS, IT IS CLEAR THAT THE ASSES SEE HAS FURNISHED INACCURATE PARTICULARS/CONCEALED THE PART ICULARS OF INCOME OF RS. 3,18,994/-, AS ALREADY DISCUSSED IN D ETAIL IN PARAS 2.3 TO 2.7 SUPRA. THE ASSESEE HAS NOT ACCOUNT ED FOR THIS INCOME OF RS. 3,18,994/-, DESPITE THE FACT THAT IT WAS WELL AWARE OF ALL ABOVE FACTS AND CIRCUMSTANCES. 3. PROVISION OF SECTION 271(1)(C) EMPOWERS THE AO TO IMPOSE PENALTY IF IN THE COURSE OF THE PROCEEDINGS UNDER THE INCOM E TAX ACT THE AO IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICU LARS OF HIS INCOME & FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. T HUS THERE ARE TWO DIFFERENT CHARGES IN RESPECT OF WHICH PENALTY HAS T O BE IMPOSED. THE CHARGE OF CONCEALING THE PARTICULARS OF INCOME IS D IFFERENT FROM FURNISHING OF INACCURATE PARTICULARS OF THE INCOME. EXPLANATION I IS APPLICABLE IN CASE OF CONCEALMENT OF PARTICULARS OF INCOME. IN THE CASE OF CONCEALMENT OF PARTICULARS OF INCOME THE ONUS IS O N THE ASSESSEE. IN VIEW OF APPLICABILITY OF EXPLANATION I TO PROVE THA T THE ASSESEE HAS NOT CONCEALED THE PARTICULARS OF INCOME WHILE IN THE C ASE OF FURNISHING THE INACCURATE PARTICULARS OF INCOME, THE ONUS LIES ON THE REVENUE TO PROVE THAT THE ASSESEE HAS FURNISHED INACCURATE PARTICULA RS OF INCOME. THUS THERE MUST BE SPECIFIC CHARGE IN RESPECT OF WHICH T HE PENALTY U/S 271(1) (C) CAN BE IMPOSED IN THE CASE OF THE ASSESSEE. IT IS APPARENT FROM THE ITA NO. 4784/DEL/2012 3 PENALTY ORDER THE AO IS NOT AWARE OF FOR WHICH CHAR GE HE HAS IMPOSED THE PENALTY WHETHER IT IS FOR FURNISHING INACCURAT E PARTICULARS OR FOR CONCEALING THE PARTICULARS OF INCOME. UNTIL AND UNL ESS THERE IS A SPECIFIC CHARGE BEING LEVIED ON THE ASSESEE I AM OF THE VIEW NO PENALTY U/S 271(1)(C) CAN BE IMPOSED ON THE ASSESSEE. MY AFORE SAID VIEW IS DULY SUPPORTED BY THE DECISION OF GUJARAT HIGH COURT IN T HE CASE OF NEW SORATHIA ENGG. CO. VS. CIT 282 ITR 642 (GUJARAT), H ONBLE KARNATAKA HIGH COURT HAS ALSO TAKEN THE SIMILAR VIEW IN THE C ASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565. SIN CE IT IS NOT DISCERNIBLE FROM THE ORDER PASSED BY THE AO FOR WHI CH SPECIFIC CHARGE THE PENALTY HAS BEEN IMPOSED U/S 271(1)(C), I THER EFORE DELETE THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT. 4. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2016. (P.K. BANSAL) ACCOUNTANT MEMBER DATED: 11/07/2016 VEENA COPY FORWARDED TO 1. APPLICANT ITA NO. 4784/DEL/2012 4 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI