Sanjeev Goel, Delhi V. ITO, Ward-29(1), New Delhi

ITA 5383/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5249 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT KATOCH SENIOR
• Keywords: Unexplained cash credit; Income from undisclosed sources; Set aside
• Section: 271(1)(c); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE HONBLE VICE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER EARLY HEARING APPLN.NO.149/DEL/2019 (IN ITA NO.5383/DEL./2018) (ASSESSMENT YEAR : 2008-09) AND ITA NO.5383/DEL./2018 (ASSESSMENT YEAR : 2008-09) SHRI SANJEEV GOEL, VS. ITO, WARD 29 (1), 4101, 3 RD FLOOR, NAYA BAZAR, NEW DELHI. DELHI 110 016. (PAN :AAHPG2434M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATYAJEET GOEL, ADVOCATE REVENUE BY : SHRI AMIT KATOCH, SENIOR DR DATE OF HEARING : 17.05.2019 DATE OF ORDER : 17.05.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : EARLY HEARING APPLICATION NO.149/DEL/2019 DATED 15.04.2019 IS HEREBY ALLOWED KEEPING IN VIEW THE FA CT THAT WHEN ADDITION ON THE BASIS OF WHICH PENALTY HAS BEEN LEV IED AND CONFIRMED BY AO/CIT (A) HAS ALREADY BEEN DELETED BY THE ITA NO.5383/DEL/2018 2 TRIBUNAL, PENALTY LEVIED IS PRIMA FACIE NOT SUSTAIN ABLE, HENCE THE BENCH IS PROCEEDED TO DECIDE THE AFORESAID APPEAL B Y TODAY ITSELF. 2. APPELLANT, SHRI SANJEEV GOEL (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 12.07.2016 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-34, NEW DELHI QUA THE ASSESSME NT YEAR 2008-09 ON THE GROUNDS INTER ALIA THAT :- 1(I) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING PENALTY U/S 271(1)(C) ON THE ADDITION OF RS.14,14,000/- MADE ON ACCOUNT OF UNEXPLAINED CREDIT BEING ADDITION TO CAP ITAL AND LOAN FROM WIFE AND BROTHER. (II) THAT THERE BEING NO CASE OF ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS, THE PENALTY U/S 271(1)(C) IS NOT SUSTAINABLE ON FACTS A ND LAW. 2. THAT EVEN OTHERWISE, THE ADDITION OF RS.14,14,000/- HAVING BEEN DELETED BY HONBLE ITAT VIDE ORDER DATED 27.07.2016 IN ITA NO.3998/DEL/2011 , THERE IS NO CASE OF ANY PENALTY U/S 271(1)(C) OF TH E ACT. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED UNDER SECTION 143 (3) OF THE INCOME-TAX ACT, 1961 (FOR SH ORT THE ACT) MAKING ADDITION OF RS.10,67,668/- AND RS.14,14,000/ - QUA DISALLOWANCE OF EXPENSES CLAIMED BY THE ASSESSEE ON ACCOUNT OF INTEREST AND ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES WITHIN THE MEANING OF SECTION 68 OF THE ACT RESPECTIVELY, PENALTY ITA NO.5383/DEL/2018 3 PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED . DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO LEVIED THE P ENALTY OF RS.7,61,335/- @ 100% U/S 271(1)(C) OF THE ACT. 4. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS RESTRICTED THE PENALTY TO THE E XTENT OF ADDITION OF RS.14,14,000/- BY PARTLY ALLOWING THE APPEAL. F EELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT ADDITION MADE BY THE AO AND C ONFIRMED BY THE LD. CIT (A) TO THE TUNE OF RS.14,14,000/- U/S 6 8 OF THE ACT AS INCOME FROM UNDISCLOSED SOURCES HAS BEEN DELETED VI DE ORDER DATED 27.07.2016 IN ITA NO.6308/DEL/2012 AND AS SUCH PENALTY LEVIED IS NOT SUSTAINABLE AND BROUGHT ON RECORD THE COPY OF THE TRIBUNAL ORDER DATED 27.07.2016 (SUPRA). 7. UNDISPUTEDLY, COORDINATE BENCH OF THE TRIBUNAL V IDE ORDER DATED 27.07.2016 (SUPRA) DELETED THE ADDITION MADE U/S 68 OF THE ACT. IN THESE CIRCUMSTANCES, THE PENALTY LEVIED BY THE AO AND ITA NO.5383/DEL/2018 4 CONFIRMED BY LD. CIT (A) IS NOT SUSTAINABLE IN VIEW OF THE LAW LAID DOWN BY THE HONBLE APEX COURT IN CASE CITED AS K.C. BUILDERS & ANR VS. ACIT 265 ITR 562 (SC) BECAUSE WHEN THE ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED HAVE BEEN DELETED THERE REMAI NS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT AND IN SUCH CASE, NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. SO, IN VIEW OF THE MATTER, PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS ORDERED TO BE DELETED. CONSEQUE NTLY, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 17 TH DAY OF MAY, 2019 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBE R DATED THE 17 TH DAY OF MAY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-34, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.