Rahul Syal, New Delhi V. ITO, New Delhi

ITA 4995/DEL/2015

• Counselvise Citation: 499520114 RSA 2015
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 30-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 04-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SEHGAL
• Assessee Lawyers: P DAM KANUNJNA
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC-2: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4995/DEL/2015 A.Y. : 2010-11 RAHUL SYAL, VS. ITO, WARD-18(1), E-76, 2 ND FLOOR, NEW DELHI GREATER KAILASH-II, NEW DELHI 110 048 (PAN: ASPPS3556C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. P. DAM KANUNJNA, SR. DR DEPARTMENT BY : SH. V.K. SEHGAL, CA DATE OF HEARING : 30-10-2015 DATE OF ORDER : 30-10-2015 O R D E R PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-22, NEW DELHI DATED 8.6.2015 PERTAINING TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS OF APPEAL READ AS UNDER:- I) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS O F THE CASE IN IMPOSING A PENALTY. II) THAT THE AO HAS ERRED IN LAW AND ON FACTS OF TH E CASE IN CALCULATING THE QUANTUM OF PENALTY. 2 III) THAT THE APPELLANT CRAVES TO LEAVE TO ADD, ALTE R, AMEND ANY OF THE GROUNDS OF APPEAL AT ANY TIME ON OR BEFORE THE DATE OF HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSME NT PROCEEDINGS IN THIS CASE WAS COMPLETED U/S. 143(3) OF THE I.T. ACT 1961 ON 5.3 .2013 AT A TOTAL INCOME OF RS. 7,38,850/- AGAINST THE RETURNED INCOME OF RS. 2,00, 000/-. DURING THE ASSESSMENT PROCEEDINGS, WHILE EXAMINING THE BLANK STATEMENT IT WAS NOTICED THAT THE DEPOSITS OF RS. 4,84,969/- AND RS. 18,24,975/- APPEARING ON 24.2.2010. THE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF THESE DEPOSITS. IN RESPONSE, VIDE LETTER DATED 15.1.2013 THE ASSESSEE STATED THAT HE BOOKED A FLAT WI TH BPTP LTD AND IT DOES NOT OFFERED THE FLAT AS COMMITTED BY IT. THE DEPOSITS A RE THE AMOUNTS REFUNDED BY BPTP LTD., RS. 18,24,975/- AGAINST THE PRINCIPAL AMOUNT AND RS. 5,38,854/- AGAINST THE INTEREST ON IT. ASSESSEE OFFERED THIS AMOUNT FOR T AXATION. ACCORDINGLY, AN AMOUNT OF RS. 5,38,854/- WAS ADDED BACK TO THE TOTAL INCOME O F THE ASSESSEE AS UNDISCLOSED INCOME, ACCORDINGLY, PENALTY PROCEEDINGS U/S. 271(1) (C) OF THE I.T. ACT WERE INITIATED AND THE CASE WAS FIXED ON 29.4.2013 TO AFF ORD AN OPPORTUNITY TO FURNISH ITS REPLY. ON THE FIXED DATE NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE ATTENDED. ANOTHER SHOW CAUSE NOTICE U/S. 271(1) OF THE I.T. ACT , 1961 DATED 5.8.2013 WAS ISSUED AND THE CASE WAS FIXED FOR 21.8.2013. ON THE F IXED DATE, AGAIN NO COMPLIANCE HAS BEEN MADE BY THE ASSESSEE. IN VIEW O F THESE FACTS, IT SEEMS THAT THE ASSESSEE HAS NOTHING TO SAY IN THIS REGARD AND THEREFORE, THE AO HELD THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF HI S INCOME TO THE EXTENT OF RS. 5,38,854/- WITHIN THE MEANING OF EXPLANATION 1(A) TO SECTION 271(1)(C) OF THE ACT. ACCORDINGLY, HE IMPOSED A PENALTY OF RS. 1,45,906/- WHICH IS EQUAL TO 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. 3 4. AGGRIEVED WITH THE PENALTY ORDER, ASSESSEE APPEA LED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 8.6.2015 HAS DIRECTED THAT THE PENALTY SHOULD BE RS. 1,25,306/- INSTEAD OF RS. 1,45,906/-. 5. AGAINST THE ABOVE MENTIONED IMPUGNED ORDER DAT ED 8.6.2015, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL OF THE ASSESSEE REITERATED THE CON TENTIONS RAISED IN THE GROUNDS OF APPEAL AND REQUESTED THAT THE PENALTY IN DISPU TE MAY BE DELETED. 7. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER O F THE AUTHORITIES BELOW. 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I FIND THAT THE LD. CIT(A ) HAS ELABORATELY DEALT WITH THE ISSUE IN DISPUTE AND HELD AS UNDER:- A) FROM THE FACTS OF THE CASE, IT IS CLEAR THAT TH E INTEREST AMOUNT HAD BEEN RECEIVED BY E APPELLANT AND ALSO BEEN REFLECTED IN FORM NO. 26AS PERTAINING, TO THE APPELLANT. IT IS ALSO CLEAR THAT THE AMOUNT O F RS. 5,38,854/- HAD BEEN RECEIVED IN THE APPELLANT BANK ACCOUNT EVEN THOUGH THE APPELLANT HAS SUBMITTED THAT HE WAS NOT AWARE OF THE DETAILS AND NO TDS CERTIFICATE WAS PROVIDED BY M/S BPTP. B) THE AO HAS CLEARLY POINTED OUT THAT THIS AMOUNT OF RS. 5,38,854/- WAS DETECTED AS UNDISCLOSED INCOME DURING THE ASSES SMENT PROCEEDINGS AND THEN THE AMOUNT HAD BEEN SURRENDERED BY THE ASSESSE E. IT IS THEREFORE, CLEAR THAT THIS AMOUNT WOULD NOT HAVE BEEN TAXED IF THE C ASE HAD NOT BEEN UNDER SCRUTINY. IT IS ALSO CLEAR THAT THE APPELLANT HAD NOT FULLY DISCLOSED ALL THE FACTS AT THE TIME OF FILING OF RETURN OF INCOME. 4 THOUGH THE AR HAS RELIED UPON VARIOUS JUDICIAL PRON OUNCEMENTS TO ARGUE THAT THERE WAS NO INTENTION OR DESIRED TO CONCEALED THE INCOME, IN THE PRESENT CASE IT WAS EVIDENT THAT THE ASSESSEE HAD RECEIVED THIS SUBSTANTIAL AMOUNT OF RS. 5,38,854/-, WHICH SHOULD HAVE BEEN MADE THE ASS ESSEE CURIOUS ABOUT THIS ENTRY IN HIS BANK ACCOUNT. THEREFORE, IT IS CL EAR THAT THIS AMOUNT HAD NOT BEEN TRULY DISCLOSED AND EXPLAINED BY THE APPELLAN T AT THE TIME OF FILING OF ITS RETURN OF INCOME. IN THE PRESENT CASE THEREFORE THIS AMOUNT OF RS. 5,38,854/- HAS TO BE TREATED AS CONCEALED INCOME. IN THIS REGARD, RELIANCE IS PLACED UPON IN THE DECISION OF ZOOM TELECOMMUNI CATION LTD. (DEL) 2011, WHERE IT HAS BEEN HELD THAT SINCE THE INCOME HAS BE EN DETECTED ON ACCOUNT OF SCRUTINY ASSESSMENT AND WOULD BE EVADED IF THE S CRUTINY ASSESSMENT WAS NOT DONE THE PENALTY ON CONCEALMENT SHOULD BE IMPOS ED. THEREFORE, IN MY OPINION THE AO WAS FULLY JUSTIFIED IMPOSING THE PEN ALTY U/S. 271(1)(C) OF THE I.T. ACT, 1961. C) HOWEVER, WITH REGARD TO THE COMPUTATION OF AMOUN T THE AO IS DIRECTED TO REDUCE THE AMOUNT OF TDS, IF THE SAME HAS NOT BEE N CONSIDERED FOR TAXES ALREADY PAID BY THE APPELLANT. SIMILARLY, THE AO MA Y VERIFY THE CLAIM OF THE APPELLANT THAT THE TOTAL AMOUNT OF PENALTY SHOULD B E RS. 1,25,306/- INSTEAD OF RS. 1,45,906/-. THEREFORE, WITH REGARD TO THE COMPUTATION OF PENALT Y THE AO IS DIRECTED TO MAKE THE NECESSARY RECTIFICATION AFTER GIVING CREDIT FOR THE TDS DEDUCTED BY M/S BPTP AND ALSO KEEPING IN VIEW THE CO MPUTATION OF TAX AS ARGUED BY THE AR OF THE APPELLANT. 5 IN VIEW OF THE ABOVE OBSERVATIONS THE IMPOSITION OF PENALTY IN THE PRINCIPLE IS UPHELD, HOWEVER, THE COMPUTATION OF PE NALTY MAY BE RECTIFIED BY THE AO AFTER CONSIDERING THE OBSERVATIONS ABOVE. AS A RESULTED THIS APPEAL IS TREATED AS PARTY ALLOWED. 9. KEEPING IN VIEW OF THE AFORESAID FINDINGS GIVEN BY THE LD. CIT(A), I AM OF THE CONSIDERED VIEW THAT IT IS EVIDENT THAT THE ASSESSE E HAD RECEIVED THE AMOUNT OF RS. 5,38,854/-, WHICH SHOULD HAVE BEEN MADE THE ASSESSE E CURIOUS ABOUT THIS ENTRY IN HIS BANK ACCOUNT. THEREFORE, IT IS CLEAR THAT THIS AMOUNT HAD NOT BEEN TRULY DISCLOSED AND EXPLAINED BY THE ASSESSEE AT THE TIM E OF FILING OF ITS RETURN OF INCOME, THEREFORE, THIS AMOUNT OF RS. 5,38,854/- WAS TREAT ED AS CONCEALED INCOME AND THEREFORE, THE RELIANCE WAS PLACED UPON ON THE DEC ISION OF ZOOM TELECOMMUNICATION LTD. (DEL) 2011, WHEREIN IT HAS BEE N HELD THAT SINCE THE INCOME HAS BEEN DETECTED ON ACCOUNT OF SCRUTINY ASSESSMENT AND WOULD BE EVADED IF THE SCRUTINY ASSESSMENT WAS NOT DONE THE PENALTY ON CON CEALMENT SHOULD BE IMPOSED. THEREFORE, THE AO WAS FULLY JUSTIFIED IN IMPOSING TH E PENALTY U/S. 271(1)(C) OF THE I.T. ACT, 1961 AND LD. CIT(A) WAS ALSO RIGHT IN REDUCING TH E AMOUNT OF TDS AND RIGHTLY CONFIRMED THE PENALTY OF RS. 1,25,306/- INSTEAD OF R S. 1,45,906/-. HENCE, I DO NOT SEE ANY REASON TO INTERFERE WITH THE WELL REASONED ORDER PASSED BY THE LD. CIT(A), THEREFORE, I UPHOLD THE SAME AND DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 6 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 30/10/2015 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 7