Pramod Kumar SIngh, New Delhi V. ACIT, New Delhi

ITA 4919/DEL/2013

• Counselvise Citation: 491920114 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 12-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 19-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY SR DR OR OROR
• Assessee Lawyers: TAPAS KUMAR MISRA
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 4919/DEL/2013 4919/DEL/2013 4919/DEL/2013 4919/DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008 - -- - 09 0909 09 SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, B BB B- -- -303, SUKH SAGAR 303, SUKH SAGAR 303, SUKH SAGAR 303, SUKH SAGAR APARTMENTS, APARTMENTS, APARTMENTS, APARTMENTS, 52, 52, 52, 52, IP EXTENSION, IP EXTENSION, IP EXTENSION, IP EXTENSION, DELHI DELHI DELHI DELHI 110 092. 110 092. 110 092. 110 092. PAN : AAOPS8775J. PAN : AAOPS8775J. PAN : AAOPS8775J. PAN : AAOPS8775J. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -36(1), 36(1), 36(1), 36(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TAPAS KUMAR MISRA, ADVOCATE. RESPONDENT BY : SHRI VIKRAM SAHAY, SR.DR. OR OROR ORDER DER DER DER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-XXVII, NEW DELHI DATED 29 TH MAY, 2013 FOR THE AY 2008- 09. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AGAINS T THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME-TAX A CT, 1961 AT `2,87,273/-. 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT EARLIER THE ASSESSEE WAS IN THE EMPLOY MENT OF M/S MOREPEN LABORATORIES LTD. FROM WHOM THE ASSESSEE HA S RECEIVED FULL AND FINAL SETTLEMENT AMOUNT OF `12,94,652/-. AS PE R ASSESSING OFFICER, OUT OF THIS FULL AND FINAL SETTLEMENT, THE ASSESSEE HAS DISCLOSED LESS INCOME OF `7,80,716/-. HE, THEREFORE, MADE THE ADD ITION FOR THE SAME. THE ASSESSEE DID NOT FILE APPEAL AGAINST THE ABOVE ORDER BECAUSE AS PER THE TDS CERTIFICATE ISSUED BY M/S MOREPEN LABOR ATORIES LTD., THE ITA-4919/D/2013 2 TAXABLE SALARY WAS DISCLOSED AT `9,44,652/-. THAT SUBSEQUENTLY, THE ASSESSEE ASKED M/S MOREPEN LABORATORIES LTD. ABOUT THE WORKING OF THE PAYMENT OF FULL AND FINAL SETTLEMENT AT `12,94, 652/- THEN IT WAS GATHERED THAT IT INCLUDED THE LEAVE ENCASHMENT, LTC S ENCASHMENT, ACCUMULATION OF SUPERANNUATION AMOUNT ETC. WHICH AR E NOT TAXABLE. THUS, THE WORKING GIVEN BY THEM IN THE TDS CERTIFIC ATE WAS WRONG AND ASSESSEES BELIEF THAT FULL AND FINAL SETTLEMENT IN CLUDES VARIOUS ITEMS WHICH ARE NOT TAXABLE WAS CORRECT. THE LEARNED COU NSEL FOR THE ASSESSEE HAS PRODUCED THE WORKING OF FULL AND FINAL SETTLEMENT IN HIS PAPER BOOK AT PAGE 25. HE FAIRLY ADMITTED THAT THE ABOVE WORKING WAS NOT GIVEN BEFORE THE LOWER AUTHORITIES BECAUSE IT W AS RECEIVED BY THE ASSESSEE SUBSEQUENTLY. HE, THEREFORE, SUBMITTED TH AT THE PENALTY LEVIED UNDER SECTION 271(1)(C) MAY BE CANCELLED. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW AND HE STATED THAT THE ADDITION H AS BECOME FINAL AS THE ASSESSEE HAS NOT FILED APPEAL AGAINST THE SAID ORDER. IN THE PENALTY PROCEEDINGS, WITHOUT GIVING ANY DETAILS BEFORE THE LOWER AUTHORITIES, THE ASSESSEE CANNOT PLEAD AT THIS STAGE THAT THE AM OUNT IS NOT CHARGEABLE TO TAX. HE, THEREFORE, SUBMITTED THAT T HE PENALTY LEVIED BY THE ASSESSING OFFICER MAY BE SUSTAINED. HE ALTERNA TIVELY SUBMITTED THAT IF AT ALL THE ASSESSEES REQUEST IS ACCEPTED, THEN THE MATTER NEEDS TO BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICE R BECAUSE THE PAPER WHICH IS CLAIMED TO BE THE WORKING OF FULL AND FINA L SETTLEMENT WAS NEVER PRODUCED BEFORE THE ASSESSING OFFICER AND HE DID NOT GET ANY OPPORTUNITY TO EXAMINE THE SAME. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED RELEVANT MATERIAL PLACED BEFORE US. AF TER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF THE CA SE, IN OUR OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDERS OF AUT HORITIES BELOW ARE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. ITA-4919/D/2013 3 THOUGH IN THE QUANTUM PROCEEDINGS, DETERMINATION OF INCOME HAS BECOME FINAL, IN THE PENALTY PROCEEDINGS, THE ASSES SEE HAS A RIGHT TO POINT OUT THAT THE INCOME FOR WHICH ADDITION IS MAD E IS NOT CHARGEABLE TO TAX. THEREFORE, IN OUR OPINION, IT WOULD BE IN THE INTEREST OF JUSTICE TO ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE SO THAT HE CAN ESTABLISH BEFORE THE ASSESSING OFFICER THAT THE ADDITION WHIC H HAS BEEN MADE BY THE ASSESSING OFFICER IS IN FACT NOT CHARGEABLE AS INCOME FROM SALARY. ACCORDINGLY, WE RESTORE THE MATTER TO THE FILE OF T HE ASSESSING OFFICER AND DIRECT HIM TO ALLOW ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE NECESSARY EVIDENCE AND EXPLANATION BEFORE THE ASSESSING OFFIC ER. THEREAFTER, THE ASSESSING OFFICER WILL PASS THE ORDER IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER, 2014. SD/- SD/- ( (( ( I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR ) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 14.11.2014 VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, SHRI PRAMOD KUMAR SINGH, B BB B- -- -303, SUKH SAGAR APARTMENTS, 303, SUKH SAGAR APARTMENTS, 303, SUKH SAGAR APARTMENTS, 303, SUKH SAGAR APARTMENTS, 52, IP EXTENSION, DELHI 52, IP EXTENSION, DELHI 52, IP EXTENSION, DELHI 52, IP EXTENSION, DELHI 110 0 110 0 110 0 110 092. 92. 92. 92. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -36(1), NEW DELHI. 36(1), NEW DELHI. 36(1), NEW DELHI. 36(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR