Sh. Navneet Jhanb, New Delhi V. ACIT, Faridabad

ITA 486/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3144 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-05-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJANA
• Assessee Lawyers: DR RAKESH GUPTA
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI P. K. BANSAL, VICE PRESIDENT AND SMT BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 486-488/DEL/2014 ASSTT. YEAR : 2001-02 ASSTT. YEAR : 2002-03 ASSTT. YEAR : 2003-04 NAVNEET JHANB C/O. RRA TAXINDIA D-28, SOUTH EXTENSION, PART-I NEW DELHI PAN : AAYPJ3980G VS. ACIT CENTRAL CIRCLE-I FARIDABAD [APPELLANT] [RESPONDENT] ASSESSEE BY : SH. DR. RAKESH GUPTA, ADV. REVENUE BY : SH. P.DAM KANUNJANA, SR. DR DATE OF HEARING: 1 2 12 2017 DATE OF PRONOUNCEMENT: 1 2 12 2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT : ALL THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER OF THE CIT(A). THE ONLY ISSUE INVOLVED IN ALL THESE APPEALS RELATE TO THE SUSTENANCE OF THE PENALTY LEVIED U/S 271(1)(C). 2. THE LD. AR DURING THE COURSE OF HEARING ST ATED THAT THE ISSUE INVOLVED IN THIS APPEAL AS WELL AS THE FACTS ARE CONCERNED IS D ULY COVERED IN FAVOUR OF THE ITA NO.486-488/DEL./2014 2 ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN ITA NO . 756/DEL/2016 FOR THE ASSESSMENT YEAR 2001-02 VIDE ORDER DATED 11.07.2016 . THE LD. DR WAS FAIR ENOUGH TO CONCEDE THE POSITION. 3. WE, THEREFORE, AFTER HEARING THE RIVAL S UBMISSION AND GOING THROUGH THE ORDER OF THE TAX AUTHORITIES AS WELL AS OF THE ASSE SSING OFFICER AND AFTER NOTICING THE PENALTY IN ALL THESE YEARS HAS ALSO BEEN LEVIED ON THE SAME BASIS AS HAS BEEN LEVIED IN THE ASSESSMENT YEAR 2001-02. WE SET ASIDE THE RESPECTIVE ORDER OF THE CIT(A) IN EACH OF THE ASSESSMENT YEAR AS THE ISSUE INVOLVED IN OUR VIEW IS DULY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THIS TRIBUNAL IN ITA NO. 756/DEL/2016 FOR THE ASSESSMENT YEAR IN WHICH THIS TRIBUNAL VIDE ORDER DATED 11.7.2016 HELD AS UNDER :- 2. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. I NOTED THAT IN THIS CASE THE AO LEVIED THE PENALTY ON THE ASSESSEE @200% OF THE TAX SOUGHT TO BE EVADED AMOUNTING TO RS, 4,89,880/- BY OBSERVING AS UNDER: - 'THE ASSESSEE HAS KEPT CHANGING THE EXPLANATION, RA THER HE KEPT ON SUBMITTING WRONG FACTS/MISLEADING FACTS BOTH BEFORE THE AO AND THE CIT(A), THEREFORE, IT IS A FIT CASE FOR IMPOSITION OF PENALTY @ 200%. IN VIEW OF THE ABOVE I FIND IT REASONABLE TO IMPOSE A PENALTY OF RS. 4,89,880/- BEING 200% OF THE TAX SOUGHT TO BE EVADE D AS CALCULATED BELOW :- I) TAX AS PER ASSESSED INCOME : RS. 3,50,269/- II) TAX AS PER RETURNED INCOME : RS. 1,05,329/- III) TAX SOUGHT TO BE EVADED : RS. 2,44,940/- IV) MINIMUM PENALTY LEVIABLE @100%: RS. 2,44,940/- V) MAXIMUM PENALTY LEVIABLE @ 200%: RS. 4,89,880/- ' 3. WHEN THE MATTER WENT BEFORE THE ID. CIT(A), THE ID. CIT(A) REDUCED THE PENALTY TO 100% OF THE TAX SOUGHT TO BE EVADED AMOU NTING TO RS, 2,44,940/-. 4. PROVISION OF SECTION 271(L)(C) EMPOWERS THE AO I F IN THE COURSE OF THE PROCEEDINGS UNDER THE INCOME TAX ACT THE AO IS SATI SFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME BY FURN ISHING INACCURATE PARTICULARS OF SUCH INCOME. THUS THERE ARE TWO DIFF ERENT CHARGES IN RESPECT OF WHICH PENALTY HAS TO BE IMPOSED. THE CHARGE OF C ONCEALING THE PARTICULARS OF INCOME IS DIFFERENT FROM FURNISHING OF INACCURAT E PARTICULARS OF THE INCOME. EXPLANATION I IS APPLICABLE IN CASE OF CONCEALMENT OF PARTICULARS OF INCOME. IN THE ITA NO.486-488/DEL./2014 3 CASE OF CONCEALMENT OF PARTICULARS OF INCOME THE ON US IS ON THE ASSESSEE. IN VIEW OF APPLICABILITY OF EXPLANATION I TO PROVE THAT THE AS SESEE HAS NOT CONCEALED THE PARTICULARS OF INCOME WHILE IN THE CASE OF FURN ISHING THE INACCURATE PARTICULARS OF INCOME THE ONUS LIES ON THE REVENUE TO PROVE THAT THE ASSESEE HAS FURNISHED INACCURATE PARTICULARS OF INC OME. THUS THERE MUST BE SPECIFIC CHARGE IN RESPECT OF WHICH THE PENALTY U/S 271(1) (C) CAN BE IMPOSED IN THE CASE OF THE ASSESSEE. IT IS APPARENT FROM THE PENALTY ORDER THE AO IS NOT AWARE OF FOR WHICH CHARGE .HE HAS IMP OSED THE PENALTY WHETHER IT IS FOR FURNISHING INACCURATE PARTICULARS OR FOR CONCEALING THE PARTICULARS OF INCOME. UNTIL AND UNLESS THERE IS A SPECIFIC CHARGE BEING LEVIED ON THE ASSESEE. I AM OF THE VIEW NO PENALTY U/S 271(L)(C) CAN BE IMPOSED ON THE ASSESSEE. MY AFORESAID VIEW IS TILT, SUPPORTED BY THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF NEW S ORATHIA ENGG. CO. VS. CIT 282 ITR 642 (GUJARAT), HON'BLE KARNATAKA HIGH COURT HAS ALSO TAKEN THE SIMILAR VIEW IN THE CASE OF CIT VS, MANJUNATHA COTT ON & GINNING FACTORY 359 ITR 565. SINCE IT IS NOT DISCERNIBLE FROM THE O RDER PASSED BY THE AO FOR SPECIFIC CHARGE THE PENALTY HAS BEEN IMPOSED U/S 27 1(I)(C), I THEREFORE DELETE THE PENALTY IMPOSED U/S 271(L)(C) OF THE AC T. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS A LLOWED. 4. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE TRIBUNAL, WE SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY LEVIED U /S 271(1)(C) IN EACH OF THE ASSESSMENT YEARS. 5. IN THE RESULT ALL THE APPEALS FILED BY TH E ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT DURING THE COURSE OF HEARING.) SD/- (BEENA A. PILLAI) SD/- (P.K.BANSAL) JUDICIAL MEMBER VICE PRESIDENT DATED: 12 .12.2017 *BINITA* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.486-488/DEL./2014 4 DATE INITIAL 1. DRAFT DICTATED ON 12/12/2017 2. DRAFT PLACED BEFORE AUTHOR 12/12/2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 12/12/2017 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. ITA NO.486-488/DEL./2014 5