ITO, New Delhi V. Sh. Akhil Kakkar, New Delhi

ITA 5251/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86502 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 19-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARWINDER KAUR
• Keywords: Income from undisclosed sources
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. , JM ITA NO. 5251 /DEL/2013 : ASSTT. YEAR : 2005 - 06 INCOME TAX OFFICER , WARD 26(1) ROOM NO. 1807, 18 TH FLOOR, E - 2, BLOCK, PRATYAKSH KAR BHAWAN, DR. SP MUKHERJEE MARGE, CIVIC CENTRE, NEW DELHI VS SHRI AKHIL KAKKAR, A - 3/1D, GREEN APARTMENT, PASCHIM VIHAR, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A OMPK8562M ASSESSEE BY : NONE REVENUE BY : SMT. PARWINDER KAUR , SR. DR DATE OF HEARING : 07 .01.2015 DATE OF PRONOUNCEMENT : 07 .01.2015 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 03.07.2013 OF LD. CIT(A) - XX I V , NEW DELHI. 2. DURING THE COURSE OF HEARING NO BODY WAS P RESENT ON BEHALF OF THE ASSESSEE , WE, THEREFORE, PROCEEDED EX PARTE QUA THE ASSESSEE AND APPEAL IS DECIDED ON MERIT AFTER HEARING THE LD. DR. 3. FACTS OF THE CASE IN BRIEF ARE T HAT A NOTICE U/S 148 OF THE I. T. ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT) WAS ISSUED TO ITA NO. 5251 /DEL /2013 AKHIL KAKKAR 2 THE ASSESSEE ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 12,56,350/ - IN THE S AVI NGS BANK A CCOUNT WITH IDBI BANK. I N RESPONSE TO TH E SAID NOTICE THE ASSESSEE FILED THE RETURN OF INCOME DECLA RING AN INCOME OF RS. 1,03,678/ - . HOWEVER, THE ASSESSMENT WAS FRAMED BY THE AO U/S 144 OF THE ACT BY MAKING AN ADDITION OF RS. 12,56,350/ - I.E. THE AMOUNT DEPOSITED IN THE BANK ACCOUNT WHICH WAS CO NSIDERED AS INCOME FROM UNDISCLOSED SOURCES. THE AO ALSO INITIATED PENALTY PROCEEDINGS AND THE PENALTY OF RS. 4,18,802/ - WAS LEVIED VIDE ORDER DATED 29.05.2009 PASS ED EX PARTE U/S 271(1)(C) OF THE ACT. 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DELETED THE PENALTY BY OBSERVING THAT HIS PREDECESSOR DELETED THE ADDITION MADE BY THE AO IN APPEAL NO. 185/11 - 12 VIDE ORDER DATED 20.03.2013. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: THE HON BLE HIGH COURT OF DELHI IN THE C ASE OF CIT VS R. DALMIA (1992) ADDL. CIT VS BADRI KASHI PRASAD (1993) 200 ITR 206 (ALL.) CIT VS MOHD. BUX SOKAT ALI (2004) 265 ITR 326 (RAJ.) PRABHAT OIL TRADERS VS ITO (1996) 218 ITR 39 (AHD.) CITY DRY FISH COMPANY VS CIT (1999) 238 ITR 63 (AP) ACIT VS VI P INDUSTRIES (2009) 122 TTJ 289 (MUM) 5 . NOW THE DEPARTMENT IS IN APPEAL. THE LD. DR SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A). ITA NO. 5251 /DEL /2013 AKHIL KAKKAR 3 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND CAREFULLY GONE THROU GH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT APPEARS THAT THE ADDITION MADE BY THE AO WAS DELETED BY THE LD. CIT(A) , THEREFORE, NO ADDITION REMAINED WHEN THE IMPUGNED ORDER WAS PASSED. IT IS WELL SETTLED THAT WHEN THE ADDITION ON THE BAS IS OF WHICH PENALTY WAS LEVIED ITSELF IS DELETED THE PENALTY WILL AUTOMATICALLY GO . IN THIS REGARD T HE HON BLE SUPREME COURT IN THE CASE OF K. C BUILDERS AND ANOTHER VS ACIT (2014) 265 ITR 562 HAS HELD AS UNDER: WHERE THE ADDITIONS MADE IN THE ASSESSMEN T ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. 7 . WE, THERE FORE, KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON BLE SUPREME COURT IN THE AFORESAID REFERRED TO CASE, DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS GIVEN BY THE LD. CIT(A). 8 . IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ( O RDER PRON OUNCED IN THE COURT ON 07 /01/2015 ) SD/ - SD/ - (GEORGE GEORGE K. ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /01/2015 *SUBODH*