ACIT, New Delhi V. Shri Manoj Mehra, New Delhi

ITA 5472/DEL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81910 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-10-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J P CHANDROKER
• Keywords: Gift
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER AND SHRI R.P.YADAV , JUDICIAL MEMBER ITA NO. 5472 /DEL/20 1 0 ASSESSMENT YEAR : 2004 - 05 ACIT VS. MA NOJ MEHRA CIRCLE 33 (1) 67/10, ROHTAK ROAD NEW DELHI NEW DELHI AAIPM1011B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VED JAIN, CA SMT. RANO . JAIN ADV. SH. V. CHORASIYA (ADV.) RESPONDENT BY : SH. J.P.CHANDROKER , SR. DR O R D E R PER R.S.SYAL, A .M. THIS APPEAL BY THE R EVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ON 24.09.2010 DELETING THE PENALTY AMOUNTING TO RS. 6,60,000/ - IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME - TAX ACT , 1961(HEREINAFT ER ALSO CALLED THE ACT ) IN RELATION TO THE ASSESSMENT YEAR 2004 - 05. ITA NO. 5472 /D/20 1 0 2 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD SHOW N TO HAVE RECEIVED LOANS OF RS. 20 LACS FROM HIS CHILDREN , NAMELY , MASTER AYUSH MEHRA AND BABY ANCHAL MEHR A. ON BEING CALLED UPON TO SUBSTANTIATE THE GENUINENESS OF THE LOANS , THE ASSESSEE SUBMITTED THAT THE MINOR CHILDREN, IN TURN, RECEIVED GIFTS FROM CERTAIN RELATIVES. S UMMONS WERE ISSUED TO THE DONORS OF THE ASSESSEE S CHILDREN , WHICH WERE RECEIVED BACK FR OM THE POSTAL AUTHORITIES WITH THE REMARK N O SUCH PERSON . THE ASSESSING OFFICER DEPUTED HIS I NSPECTOR FOR SERVING SUMMONS U/S 131 OF THE ACT AND CONDUCTING INQUIRIES . SOME OF THE DONORS OF THE ASSESSEE S CHILDREN WERE NOT AVAILABLE AND THE OTHERS DID NOT APPEAR , ABOUT WHOM THE INSPECTOR REPORTED TO BE LIVING WITH A LOW STANDARD. AS THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE CREDITS, THE ASSESSING OFFICER MADE ADDITION OF RS. 20 LACS. FROM THE CHART OF SEQUENCE OF EVENTS FILED BY THE LD. AR B EFORE US , IT I S SEEN THAT THE LD. CIT(A) CONFI RMED THE ORDER OF THE ASSESSING OFFICER MAKING THE ABOVE REFERRED ADDITION. I N THE MEANTIME , THE ASSESSING OFFICER LEVIED INSTANT PENALTY ON TH I S ADDITION. WHEN THE ORDER PASSED BY THE LD. CIT(A) IN QUANTUM PR OCEEDINGS WAS CHALLENGED BEFORE THE TRIBUNAL, THE ISSUE WAS RESTORED TO THE FILE OF CIT(A) BY THE TRIBUNAL VIDE ITS ORDER DATED 4.6.2009. THE LD. CIT(A) DELETED THE ADDITION IN QUANTUM PROCEEDINGS VIDE HIS ORDER DATED 3.7.2009. WHEN THE R EVENUE PR EFERRED A PPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER PASSED BY THE LD. CIT(A) DELETING THE ADDITION IN QUANTUM PROCEEDINGS, THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER IMPOSING THE INSTAN T PENALTY, THE LD. CIT(A) CHOSE TO ITA NO. 5472 /D/20 1 0 3 DELETE THE PENALTY. THE R EVENUE IS AGGRIEVED AGAINST SUCH DELETION OF PENALTY. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE UNDISPUTED FACT ABOUT THE QUANTUM PROC EEDINGS IS THAT THE ADDITION OF RS. 20 LACS , WHICH CONSTITUTED THE FOUNDATION FOR THE INSTANT PENALTY , HAS BEEN FINALLY SENT BACK TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE HON BLE SUPREME COURT IN MOH D. MOHTRAM FAROOQUI VS. CIT (SC) 2010 TIOL 23 SC IT HAS HELD THAT WHEN THE QUANTUM IS RESTORED, THE PENALTY SHOULD ALSO BE RESTORED AND NOT CANCELLED. RECENTLY IN SANJAY GUPTA VS. CIT ( 2014 ) 366 ITR 18 (DEL), T HE TRIBUNAL DELETED ADDITION OF RS. 22.50 LACS AND ALSO THE PENALTY. WHEN THE MATTER C AME UP BEFORE THE HON BLE DELHI HIGH COURT, T HEIR L ORDSHIPS REMANDED THE QUESTION OF ADDITION OF RS. 22.50 LACS TO THE ASSESSING OFFICER SIMULTANEOUS WITH THE QUESTION OF LEVY OF PENALTY ON SUCH ADDITION . THE POINT TO BE NOTED IS THAT THE PENALTY WAS NOT DELETED LEAVING THE QUESTION OF IMPOSITION OF PENALTY TO BE DECIDED AFRESH BY THE AO . T HE CONTENTION OF THE LD. AR THAT THE QUESTION OF LEVYING PENALTY SHOULD BE LEFT TO THE WISDOM OF THE AO TO BE DECIDED IN THE FRESH PROCEEDINGS , ERGO, DOES NOT MERIT AC CEPTANCE IN THE FACE OF THE JUDGMENTS OF THE HON BLE SUPREME COURT AND THE JURISDICTIONAL HIGH COURT. UNDER SUCH CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY . WE, THEREFORE, SET ASIDE THE IM PUGNED ORDER AND SEND THE MATTER BACK TO THE ASSESSING OFFICER FOR TAKING A FRESH DECISION ON THE QUESTION OF PENALTY AFTER HAVING ADJUDICATED ON THE QUESTION OF ADDITION ON MERITS. ITA NO. 5472 /D/20 1 0 4 4. IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON 16/10/2014. SD/ - ( R.P.YADAV ) JUDICIAL MEMBER SD/ - ( R.S.SYAL ) ACCOUNTANT MEMBER DATED: 16/10/14 B .RUKHAIYAR COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR *