DCIT, New Delhi V. Gaurav Bhalla, New Delhi

ITA 525/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61591 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: SAILESH GUPTA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `C : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO.525/DEL./2012 (ASSESSMENT YEAR : 2005-06) DCIT, CENTRAL CIR.20, VS. GAURAV BHALLA, NEW DELHI. FARM NO.4, HYDE PARK, PRAKRITI MARG VILLAGE, SULTANPUR, MEHRAULI, NEW DELHI. (PAN/GIR NO.AGMPB6974E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SAILESH GUPTA, CA REVENUE BY : SHRI SURENDER PAL, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER PASSED BY THE CIT (A)- XXXI, NEW DELHI, DATED 14.11.2011, RELEVANT TO ASSE SSMENT YEAR 2005-06, WHEREBY DELETION OF PENALTY OF RS.34 LAKHS IMPOSED U/S 271( 1)(C) OF THE I.T. ACT, 1961 BY THE ASSESSING OFFICER HAS BEEN CHALLENGED. 2. AT THE VERY OUTSET, LD.AR OF THE ASSESSEE SUBMIT TED THAT ADDITION OF RS.98,12,625/- MADE ON ACCOUNT OF TWO GIFTS OF RS.7 6 LAKHS AND OF RS.23,12,625/- FROM TWO DIFFERENT PERSONS HAS BEEN DELETED IN QUANTUM A PPEAL OF THE ASSESSEE AND CIT(A) WHILE CONSIDERING SUCH ORDERS OF THE C BENCH OF T HE TRIBUNAL IN THE ASSESSEES OWN CASE IN I.T.A. NO.4768/DEL./2009 FOR ASSESSMENT YEAR 200 5-06 DATED 11.02.2011 HAS DELETED I.T.A. NO.525/DEL./2012 (A.Y. : 2005-06) 2 THE IMPUGNED PENALTY. SINCE, THERE REMAINS NO BASI S ON WHICH PENALTY HAS BEEN IMPOSED, THEREFORE, IT WAS LIABLE TO BE DELETED WHICH HAS AL READY BEEN DELETED BY THE CIT(A), WHOSE ORDER NEEDS FURTHER CONFIRMATION. THE ASSESSE ES LD.AR HAS ALSO FILED PHOTOCOPY OF THE TRIBUNAL ORDER WITH THE PRAYER TO UPHOLD THE ACTION OF THE CIT(A). 3. THE LD.DR COULD NOT CONTROVERT THIS FACTUAL ASPE CT AND SUBMITTED THAT THE MATTER MAY BE DECIDED IN ACCORDANCE WITH LAW. 4. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE MATERIAL ON RECORD, WE FIND THAT PENALTY OF RS.34 LAKHS HAS BEEN IMPOSED U/S 271(1)( C) OF THE ACT, BY THE ASSESSING OFFICER ON THE BASIS OF TWO ADDITIONS OF RS.34 LAKH S AND OF RS.23,12,625/-, AGGREGATING TO RS.78,12,625/- AND SUCH ADDITION MADE BY THE ASSESS ING OFFICER AND CONFIRMED BY CIT(A) HAS SINCE BEEN DELETED BY THE C BENCH OF T HE ITAT, NEW DELHI, (CITED SUPRA) AND CIT(A) HAS WHILE TAKING NOTE OF THIS FACT HAS C ONCLUDED TO DETERMINE THE APPEAL AS PER PARA. 5 OF HIS ORDER WHICH READS AS UNDER: DURING THE COURSE OF APPELLATE PROCEEDINGS THE COU NSEL/AUTHORIZED REPRESENTATIVE OF THE APPELLANT SUBMITTED THAT THE ADDITION MADE O N ACCOUNT OF ALLEGED NON- GENUINE GIFTS OF RS.98,12,625/- BY THE ASSESSING OF FICER HAD BEEN DELETED BY THE ITAT, DELHI C BENCH VIDE THEIR ORDER DATED 11/02/ 2011. SINCE THE QUANTUM OF CONCEALED INCOME IS DELETED, THE BASIS OF PENALTY U /S 271(1)(C) I.E. TAX SOUGHT TO BE EVADED IS REDUCED TO NIL AND, THEREFORE, PENALT Y OF CONCEALMENT CANNOT SURVIVE. AS PER THE VERDICT OF THE HONBLE SUPREME COURT IN CASE OF K.C. BUILDERS VS. ACIT (2004) 265 I.T.R. 562, 569 (SC) I T AS HELD THAT WHERE THE PENALTY FOR CONCEALMENT WAS DELETED, THERE REMAINS NO BASIS AT ALL FOR PROSECUTION U/S 276C. ON SAME ANALOGY WHERE CONCEALED INCOME I S DELETED BY THE ITAT THE PENALTY FOR CONCEALMENT CANNOT SURVIVE. IN THE LIG HT OF ABOVE MENTIONED CIRCUMSTANCES, I FOUND NO REASON TO UPHOLD THE PENA LTY AND HENCE CANCELLED. 5. SINCE THE ADDITIONS ON THE BASIS OF WHICH THE P ENALTY WAS IMPOSED, HAS ALREADY BEEN DELETED BY THE ITAT IN QUANTUM APPEAL OF THE A SSESSEE. THEREFORE, THERE REMAINS NO GROUND FOR THE PENALTY. AS SUCH, THE ACTION OF THE CIT(A) BEING FREE FROM ANY AMBIGUITY OR FLAW IS UPHELD AND APPEAL OF THE REVENUE IS DIS MISSED. I.T.A. NO.525/DEL./2012 (A.Y. : 2005-06) 3 6. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT SOON AFTER THE CONCL USION OF THE HEARING ON 04.04.2012. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : APRIL 04, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXXI, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT