M/s. Civitech Housing India (P) Ltd., Delhi V. ACIT, New Delhi

ITA 481/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6915 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: SANJAY KUMAR CA SH AKARSH GARG; SISHMITA KUM
• Section: 271(1)(c); 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI ! ! ! ! ' '' ' ' '' ' ' '' ' #$# #$# #$# #$# % % % % BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SHRI B.R.R.KUMAR, ACCOUNTANT MEMBER ! ! ! !' '' ' / ITA NO:- 481/DEL/2017 && && && && / ASSESSMENT YEAR: 2010-11 M/S. CIVITECH HOUSING INDIA (P.) LTD., 65, SHRESTHA VIHAR, DELHI-110092. PAN-AABCC1465B .......... '( /APPELLANT VS ACIT, CIRCLE-6(1), NEW DELHI. . )*'( / RESPONDENT '(+,# / APPELLANT BY : SH. SANJAY KUMAR, CA, SH. AKARSH GARG, ADV. & MS. SISHMITA KUM AR, ADV. )*'(+,# / RESPONDENT BY : MS. ASHIMA NEB, SR.DR +-.$ / DATE OF HEARING : 03.10.2019 /0+-.$ / DATE OF PRONOUNCEMENT: 16.10.2019 # # # # / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF C IT(A)-2, NEW DELHI, DATED 24.11.2016 RELATING TO ASSESSMENT YEAR 2010-11 AGAINST PENALTY LEVIED U/S SECTION 271(1)(C) OF THE INCOME -TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST THE LEVY OF PENALTY FOR CONCEALMENT U/S 271(1)(C) OF THE ACT. ITA NO:481/DEL/2017 ASSESSMENT YEAR: 2010-11 PAGE | 2 3. BRIEFLY THE FACTS AND CIRCUMSTANCES OF THE CASE ARE THAT A SURVEY OPERATION U/S 133A OF THE ACT WAS CONDUCTED ON THE PREMISES OF THE ASSESSEE ON 12.10.2019. THE ASSESSEE WAS ENGAGED I N THE CONSTRUCTION ACTIVITIES. THE ASSESSEE HAD FURNISHED RETURN OF I NCOME DECLARING TOTAL INCOME OF RS.3.03 CRORES. AN ADDITION IN THE HANDS OF THE ASSESSEE WAS MADE ON ACCOUNT OF CASH FOUND DURING THE SURVEY AMO UNTING TO RS.8,16,767/-. THE ASSESSING OFFICER MADE THE ADDI TION IN THE HANDS OF THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS OBSE RVING AS UNDER:- PENALTY PROCEEDINGS U/S 271(1)(C) ARE BEING INITIA TED SEPARATELY. 4. THEREAFTER, PENALTY WAS LEVIED U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME AT RS.2,77,620/-. THE SAID PENALTY WAS CONFIRMED BY THE CIT(A), AGAINST WHICH THE ASSESSEE IS IN APPEAL. 5. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT AP PEAL IS WHETHER WHERE THE ASSESSING OFFICER HAS FAILED TO RECORD TH E SATISFACTION IN THE ASSESSMENT ORDER AS TO WHICH LIMB OF SECTION 271(1) (C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE, IS THE LEVY OF PENA LTY TO BE UPHELD IN THE CASE OF THE ASSESSEE. 6. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AR E ATTRACTED WHERE THE ASSESSEE HAD EITHER CONCEALED ITS INCOME OR FUR NISHED INACCURATE PARTICULARS OF INCOME. FOR DEFAULT OF EITHER OF TH E LIMBS OF THE SAID SECTION, THE ASSESSEE CAN BE HELD LIABLE FOR LEVY O F PENALTY OF CONCEALMENT. HOWEVER, THE ASSESSING OFFICER WHILE INITIATING PEN ALTY PROCEEDINGS HAS TO COME TO A FINDING IN THIS REGARD. IN THE PRESENT C ASE, WE FIND THAT THE ITA NO:481/DEL/2017 ASSESSMENT YEAR: 2010-11 PAGE | 3 ASSESSING OFFICER HAS FAILED TO RECORD THE SATISFAC TION AS TO WHICH LIMB OF THE SAID SECTION HAS NOT BEEN FULFILLED BY THE ASSE SSEE. IN THE ABSENCE OF THE SAME I.E. WHERE THE ASSESSEE HAS NOT BEEN GIVEN ANY SHOW CAUSE NOTICE AS TO WHICH LIMB OF SECTION 271(1)(C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE, THE LEVY OF THE PENALTY IN THIS CIRCUMSTANCES IS NOT JUSTIFIED. IN THIS REGARD, WE FIND SUPPORT FRO M THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM) . APPLYING THE SAID RATIO, WE DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DAY OF OCTOBER, 2019. SD/- SD/- (B.R.R.KUMAR) (SUSHMA CH OWLA) #$ #$ #$ #$ /ACCOUNTANT MEMBER /JUDICIAL MEMBER / ! DATED : 16 TH OCTOBER, 2019 . * AMIT KUMAR * #+)-23#2-4 COPY OF THE ORDER IS FORWARDED TO : 1. '( / THE APPELLANT; 2. )*'( / THE RESPONDENT; 3. 5 6 7 / THE CIT(A) 4. 289)- / DR, ITAT, DELHI 5. 9:&; 4 GUARD FILE. # # # # / BY ORDER , *2-)- // TRUE COPY // =>? , ASSISTANT REGISTRAR, ITAT, DELHI