Ranju Sayall, New Delhi V. ACIT, Central circle-8, New Delhi

ITA 5044/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3391 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 19-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: F NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.5044/DEL/2018 ASSESSMENT YEAR: 2011-12 SMT. RANJU SAYALL, 6, JAIN BHAWAN, 12, BHAGAT SINGH MARG, NEW DELHI VS. ACIT, CENTRAL CIRCLE-8, NEW DELHI PAN :BQNPS3663M (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THE PRESENT APPEAL BY THE ASSESSEE IS DIRECTED AGAI NST ORDER DATED 23.05.2018 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-24, NEW DELHI [IN SHORT THE LEARNED CIT(A)] FOR THE ASSESSMENT YEAR 2011-12 RAISING THE GROUNDS AS UNDE R: 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) (LD. CIT(A)) HAS GROSSLY ERRED BOTH ON FACTS AND IN LAW IN CONFI RMING THE ACTION OF THE LEARNED ASSESSING OFFICER (LD. AO) OF IMPO SING PENALTY U/S 271(1)(C) OF THE ACT, WITHOUT CONSIDERING THE F ACT THAT NO OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLA NT. 2. WITHOUT PREJUDICE TO GROUND NO. 1, THE LD. CIT ( A) HAS GROSSLY ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE PE NALTY ORDER APPELLANT BY SH. VIJAY GUPTA, CA RESPONDENT BY SH. ROHIT ANAND, SR.DR DATE OF HEARING 06.10.2021 DATE OF PRONOUNCEMENT 14.10.2021 2 ITA NO. 5044/DEL/2018 PASSED BY THE LD. AO, WITHOUT ACKNOWLEDGING THE FAC T THAT THE QUANTUM APPEAL WAS STILL PENDING BEFORE THE HONBLE ITAT AND THAT THERE WAS NO REQUIREMENT TO PASS THE PENALTY O RDER TILL THE DISPOSAL OF APPEAL PROCEEDINGS BEFORE THE ITAT. 3. WITHOUT PREJUDICE TO GROUND NO. 1 & 2 ABOVE, THE LD. CIT (A) HAS GROSSLY ERRED BOTH ON FACTS AND IN LAW IN CONFIRMIN G THE PENALTY IMPOSED BY LD. AO BY HOLDING THAT THE ASSESSEE HAS PROVIDED INACCURATE PARTICULARS OF ITS INCOME, IN COMPLETE I GNORANCE OF THE FACT THAT THE QUANTUM APPEAL IS STILL PENDING TO BE ADJUDICATED BY HONBLE ITAT. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL A T ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE QUANTUM ADDITION, IN RESPECT OF WHICH THE PENALTY HAS BEEN LEVIED, HAS BEEN RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING THE APPEAL AFRESH. IT I S FURTHER SUBMITTED THAT AS THE QUANTUM ADDITION HAS ALREADY BEEN SENT BACK TO THE FILE OF THE LEARNED CIT(A), THE PRESENT APPEAL FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME-TAX A CT, 1961 (IN SHORT THE ACT) CANNOT SURVIVE AND ACCORDINGLY THE SAME MAY BE RESTORED BACK TO THE FILE OF THE LEARNED CIT(A). 2. ON THE CONTRARY, THE LEARNED DR DID NOT CONTROVERT THE FACTS. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND TH AT THE ASSESSING OFFICER HAS LEVIED THE PENALTY IN RESPECT OF THE CASH AND JEWELLERY FOUND AND ADDITION FOR WHICH ENHANCED BY THE LEARNED CIT(A) TO RS. 35,69,810/-. FURTHER, WE FIND THAT IN QUANTUM PROCEEDING, THE TRIBUNAL IN ITA NO. 3927/DEL/2015 H AS RESTORED THIS ISSUE TO THE LEARNED CIT(A) FOR DECIDING THE A PPEAL AFRESH. THE RELEVANT PART OF THE ORDER OF THE TRIBUNAL IS R EPRODUCED AS UNDER: 3 ITA NO. 5044/DEL/2018 7. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN OUR OPINION, TH E ASSESSEE IS A NON-RESIDENT AND, IF SHE COULD NOT FILE DOCUMENTARY EVIDENCE IN SUPPORT OF HER CLAIM BEFORE THE LOWER AUTHORITIES, IN THE INTEREST OF SUBSTANTIAL JUSTICE, ONE MORE OPPORTUNITY CAN BE GR ANTED TO THE ASSESSEE TO FILE REQUIRED DOCUMENTARY EVIDENCES. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FEEL IT APPROPRIA TE TO RESTORE BOTH THE ISSUES OF ADDITION OF THE JEWELRY AND CASH FOUN D TO THE FILE OF THE LD. CIT(A) FOR DECIDING AFRESH WITH THE DIRECTION T O THE ASSESSEE TO PRODUCE ALL THE NECESSARY EVIDENCES IN SUPPORT OF H ER CLAIM ON FIRST DATE OF HEARING BEFORE THE LEARNED CIT(A). THE LEAR NED CIT(A) IS ALSO DIRECTED TO EXAMINE CLAIM OF THE ASSESSEE FOR BENEF IT OF CBDT INSTRUCTION (SUPRA) IN VIEW OF THE DECISIONS CITED BY THE LEARNED COUNSEL OF THE ASSESSEE. IT IS NEEDLESS TO MENTION THAT BOTH THE ASSESSEE AS WELL AS THE ASSESSING OFFICER SHALL BE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD. THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 4. IN VIEW THE ABOVE FACTS, AS THE QUANTUM ADDITION, IN RESPECT OF WHICH PENALTY HAS BEEN LEVIED BY THE ASSESSING O FFICER, HAS ALREADY BEEN RESTORED BACK TO THE FILE OF THE LEARN ED CIT(A), THE IMPUGNED PENALTY LEVIED BY THE ASSESSING OFFICER CA NNOT SURVIVE. ACCORDINGLY, WE RESTORE THE PRESENT APPEAL TO THE F ILE OF THE LEARNED CIT(A) FOR DECIDING AFRESH AFTER PASSING OR DER IN QUANTUM PROCEEDING. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH OCTOBER, 2021 SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 TH OCTOBER, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI