Deepak Pahwa, Delhi V. ACIT, New Delhi

ITA 4975/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6530 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 19-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA CHAUDHARI
• Keywords: Salary income; Deemed dividend; Reassessment proceedings; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 2(22)(e)

Judgement Text

ITA NO. 4975 /DEL./201 6 ASSESSMENT Y EAR: 2006 - 07 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SM C NEW DELHI) BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMB E R ITA NO. 49 75 /DEL./201 6 ASSESSMENT YEAR: 20 0 6 - 07 DEEPAK PAHWA 20, RAJPUR ROAD, DELHI VS. ACIT CIRCLE 5(1) NEW DELHI (APPLICANT) (RESPONDENT) (PAN: AA HPP5652J ) ASSESSEE BY: SH. SHAILENDER BAJAJ, C . A . REVENUE BY: MS. BEDOBINA CHAUDHARI, SR. DR DATE OF HEARING 06 / 0 3 /201 7 DATE OF PRONOUNCEMENT 0 7 / 0 3 /201 7 ORDER PER B.P. JAIN , ACCOUNTANT MEMBER : 1. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - 3 5 , NEW DELHI VIDE ORDER DATED 11 . 0 7 .201 6 FOR THE A.Y. 20 0 6 - 07 . THE ASSESSEE HAS RAISED THE GROUNDS WITH REGARD TO THE SUSTENANCE OF PENALTY AMOUNTING TO RS. 2,35,620/ - AND POINTED OUT THE ORDER OF THE ITAT B BENCH, NEW DELHI DATED 23.1.2017 WITH THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE LD. CIT(A). THE RELEVANT ORDER IS REPRODUCED HERE IN BELOW: - PAGE 2 OF 5 (B.2) WE HAVE HEARD BOTH SIDES PATIENTLY, AND HAVE ALSO CAREFULLY PERUSED ALL MATERIALS ON RECORD, INCLUDING THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND THAT THE LD. CIT (A) DISMISSED THE ASSESSEE S GROUND REGARDING INITIATION OF PROCEEDING UNDER SECTION 147 BY THE ASSESSING OFFICER AND JURISDICTION UNDER SECTION 147 OF I.T. ACT HOLDING THAT THE ASSESSEE HAD NOT DISCLOSED AND DECLARED ALL THE MATERIAL FACTS AT THE TIME OF ORIGINAL ASSESSMENT AS REFLECTED IN THE ASSESSMENT ORDER, THAT BY DULY RECORDING REASONS LEADING TO THE FORMATION OF BELIEF THAT THE INCOME HAS ESCAPED ASSESSMENT, THE ASSESSING OFFICER HAD ISSUED NOTICE U/S 148 OF THE ACT; AND THAT THE REASONS FOR REOPENING OF THE CASE WAS DULY COMMUNICATED TO THE APPELLANT DURING THE COURS E OF SUCH REASSESSMENT PROCEEDINGS AND THAT THE ASSESSEE COMPANY S OBJECTION TO SUCH REOPENING ASSESSMENT WERE ALSO DULY CONSIDERED BY THE ASSESSING OFFICER, BEFORE REJECTING THE SAME. HOWEVER IT IS NOT ASCERTAINABLE FROM THE ORDER OF LD. CIT(A) HOW HE CON CLUDED THAT ALL THE MATERIAL FACTS HAD NOT BEEN DISCLOSED BY THE ASSESSEE IN RETURN OF INCOME AND IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. MOREOVER, ID. C!T(A)' HAS NOT DEALT WITH THE PLEA OF THE ASSESSEE THAT ADDITION PAGE 3 OF 5 OF AFORESAID AMOUNT OF RS. 7 ,00,000/ - AS DEEMED DIVIDEND U/S : 2(22)(E) OF I.T. ACT LEADS TO DOUBLE ADDITION IN AS MUCH AS THE ASSESSEE HAS CLAIMED THAT THE SAME AMOUNT HAS ALSO BEEN TAXED AS SALARY INCOME. IN THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT TIE MATTER NEEDS R ECONSIDERATION AND RE - ADJUDICATION BY ID. G!T(A)._/ACCORDINGLY, WE SET ASIDE THE ORDER OF ID. CIT(A) AND RESTORE THE MATTER TO THE FILE OF ID.CIT(A) FOR FRESH ORDER. LD. CIT(A) IS DIRECTED TO PASS A DE - NOVO ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY TO ASSESSEE AND TO AO. ALL THE GROUNDS OF APPEAL ARE DISPOSED OFF IN ACCORDANCE WITH THESE DIRECTIONS, AND THE APPEAL IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 2. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. SINCE THE ISSUE IN THE PRESENT CASE HAS BEEN SET ASIDE TO THE FILE OF THE LD. CIT (A), THEREFORE THE PENALTY IN THE SAID CASE SHALL NOT SURVIVE BUT THE LD. CIT(APPEALS) IS AT LIBERTY TO TAKE A DECISION ON PENALTY ON THE DECISION IN QUANTUM WHICH HAS BEEN SET ASIDE BY THE ITAT B BENCH (SUPRA), AFTER AFFORDING ADEQUATE OPPORTUNITIES OF BEING HEARD TO THE PAGE 4 OF 5 ASSESSEE. IN THE RESULT OF THE GROUND OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 7 . P RONOUNCED IN THE OPEN COURT ON 0 7 . 0 3 .201 7. S D / - ( B.P. JAIN ) ACCOUNTANT MEMB E R DATED: 0 7 . 0 3 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR DATE PAGE 5 OF 5 DRAFT DICTATED ON 6 .0 3 .2017 DRAFT PLACED BEFORE AUTHOR 7 .0 3 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 7 .3.2017 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 7 .3.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.