Rachna Shiv, Meerut V. DCIT, Circle- 2, Meerut

ITA 53/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6932 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.53/DEL/2018 ASSESSMENT YEAR : 2009-10 RACHNA SHIV, C/O. VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT, UTTAR PRADESH. VS. DCIT, CIRCLE- 2, MEERUT, UTTAR PRADESH. PAN : ADBPS2655R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADV. DEPARTMENT BY : SHRI S. L. ANURAGI, SR. DR DATE OF HEARING : 17-07-2018 DATE OF PRONOUNCEMENT : 26-07-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 22.12.2017 OF CIT(A), MEERUT RELATING TO ASSESSMENT YEAR 2009-10. 2. LEVY OF PENALTY OF RS.84,090/- BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT, 1961 WHICH HAS BEEN UPHELD BY THE LD. CIT(A) IS THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME ON 12.09.2009 DECLARING TOTAL INCOME OF RS.40,27,956/-. THE ASSESSING OFFICER REOPENED THE ASSESSMENT U/S 1 47 ON THE GROUND THAT THERE WAS DIFFERENCE OF RECEIPTS AS PER FORM NO.26AS AND INCOME-TAX RETURN. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE FILED THE RETURN OF INCOME ON 2 ITA NO.53/DEL/2018 15.04.2016. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, IT WAS SUBMITTED THAT SINCE THE ASSESSEE COULD NOT OBTAIN THE COPY OF BAN K STATEMENT, THEREFORE, THE ASSESSEE SURRENDERED AN AMOUNT OF RS.2,47,395/- AS INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INCOME. THE ASSESSING OFFIC ER ACCORDINGLY COMPLETED THE ASSESSMENT U/S 147/143(3) ON A TOTAL INCOME OF RS.42,75,350/-. SINCE THE ASSESSEE IN RESPONSE TO NOTICE U/S 148 FILED HER RE TURN OF INCOME DECLARING THE SAME INCOME WHICH WAS ORIGINALLY RETURNED AND DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS HAD SURRENDERED THE INCOME OF RS.2,47,3 95/-, THE ASSESSING OFFICER IN THE PENALTY ORDER PASSED U/S 271(1)(C) LEVIED PE NALTY OF RS.84,090/- BEING 100% OF TAX SOUGHT TO BE EVADED. 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER ON THE GROUND THAT VOLUNTARY DISCLOSURE DOES NOT RELEA SE THE ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. ACCORDING TO HIM, L AW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A DISCLOSURE AND CLAIMS IT T O BE VOLUNTARY REGARDING HIS UNEXPLAINED INCOME, HE HAS TO BE ABSOLVED FROM PENA L PROVISIONS ESPECIALLY WHEN THE CASE WAS TAKEN UP FOR SCRUTINY ON THAT VER Y ISSUE OF SUSPICIOUS TRANSACTIONS. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE NOT ICE ISSUED U/S 274 R.W.S. 271(1)(C) DATED 17.11.2016 AND SUBMITTED THAT THE I NAPPROPRIATE WORDS IN THE 3 ITA NO.53/DEL/2018 SAID NOTICE HAS NOT BEEN STRUCK OFF AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER THE PENALTY IS BEING LEVIED FOR HIS CONCEALING THE PARTICULARS OR FURNISHING INACCURATE PARTICULARS OF INCOME. REFERRING TO VAR IOUS DECISIONS, HE SUBMITTED THAT WHEN INAPPROPRIATE WORDS IN THE NOTICE ARE NOT DELETED AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER PENALTY IS BEING LEVIED F OR FURNISHING INACCURATE PARTICULARS OF INCOME OR FOR CONCEALING THE PARTICU LARS, PENALTY U/S 271(1)(C) CANNOT BE LEVIED. HE ACCORDINGLY SUBMITTED THAT TH E ORDER OF THE LD. CIT(A) BE SET-ASIDE AND THE PENALTY LEVIED BY THE ASSESSING O FFICER BY CANCELLED. 7. LD. DR ON THE OTHER HAND STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT BY NOT DECLARING THE CORRECT SHOR T TERM CAPITAL GAIN, THE ASSESSEE HAS CONCEALED ITS PARTICULARS AND FURNISHE D INACCURATE PARTICULARS. THEREFORE, LD. CIT(A) WAS FULLY JUSTIFIED IN SUSTAI NING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT. 8. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. IT IS AN ADMITTED FACT THAT THE ASSESSEE IN HE R RETURN OF INCOME HAS NOT DISCLOSED THE CORRECT RECEIPTS SINCE THERE WAS DIFF ERENCE IN FORM 26AS AND INCOME DECLARED. I FIND ON BEING QUESTIONED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SURRENDERED THE AMOUNT AND THE ASSESSING OFFICER THEREAFTER LEVIED PENALTY U/S 271(1)(C) WHICH HAS BEEN 4 ITA NO.53/DEL/2018 SUSTAINED BY THE LD. CIT(A). IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THIS WAS AN INADVERTENT ERROR ON THE PART OF THE ASSESSEE SINCE THE BANK ACCOUNT WAS NOT OBTAINED AND, THEREFORE, PENALTY SH OULD NOT BE LEVIED SINCE IT WAS A BONA-FIDE MISTAKE. IT IS ALSO THE ALTERNATE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT INAPPROPRIATE WORDS IN THE NOTICE HAS NOT BEEN STRUCK OFF AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER THE ASSES SEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED ITS PARTICULARS OF INCOME. 9. I FIND SOME FORCE IN THE ALTERNATE ARGUMENT OF T HE LD. COUNSEL FOR THE ASSESSEE. A PERUSAL OF THE NOTICE ISSUED FOR LEVIE D OF PENALTY, A COPY OF WHICH HAS BEEN FILED DURING THE COURSE OF HEARING SHOWS T HAT THE INAPPROPRIATE WORDS IN THE SAID NOTICE HAVE NOT BEEN STRUCK OFF AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER PENALTY IS BEING LEVIED FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. I FIND THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN 359 ITR 656 HAS HELD THAT WHERE THE INA PPROPRIATE WORDS IN THE NOTICE ISSUED FOR LEVY OF PENALTY ARE NOT STRUCK OF F AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER THE ASSESSEE HAS CONCEALED IT S PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME, PENALTY U/S 271(1)(C) IS LIABLE TO BE DELETED. I FIND THE SLP FILED BY THE REVENUE WAS D ISMISSED BY THE HON'BLE SUPREME COURT VIDE C.C. NO.11485/2016 ORDER DATED 0 5.08.2016. SINCE IN THE INSTANCE CASE ALSO, THE ASSESSING OFFICER HAS NOT S TRUCK OFF THE INAPPROPRIATE 5 ITA NO.53/DEL/2018 WORDS AND THE NOTICE DOES NOT SPECIFY AS TO WHETHER THE PENALTY IS LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR FOR CONCEALING PARTICULARS OF INCOME, THEREFORE, IN VIEW OF THE RATIO LAID DOWN B Y THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY (SUPRA), THE PENALTY LEVIED BY THE ASSESSING OFFICER AND SUSTAIN ED BY THE LD. CIT(A) IS LIABLE TO BE DELETED. IN VIEW OF THE ABOVE DISCUSSION, TH E ORDER OF THE LD. CIT(A) IS SET-ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE AR E ALLOWED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH JULY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 26-07-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI