Smt. Anu Nagpal, New Delhi V. ACIT, New Delhi

ITA 5582/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6907 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 20-09-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 17-10-2013
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Gift; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH A: NEW DELHI BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO.5582/DEL/2013 ASSESSMENT YEAR : 2001-02 SMT. ANU NAGPAL, M-134, GREATER KAILASH, PART I, NEW DELHI 110 019. PAN: ACTPN 4363Q VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 23(1), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY : SHRI ANUJ JAIN, CA RESPONDENT BY : SHRI S.K. JAIN, DR DATE OF HEARING : 20.09.2016 DATE OF PRONOUNCEMENT : 22.09.2016 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 27.08.2013 OF THE CIT(APPEALS)-XXII, NEW DELHI INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THAT THE PENALTY ORDER PASSED BY LD. AO IS BAD IN LAW AND NOT BASED ON FACTS. 2. THAT THE ASSESSMENT ORDER PASSED BY LD. ASSESSIN G OFFICER IS BASED ON GUESSES AND CONJECTURES. AND HENCE UND ER THESE CIRCUMSTANCES PENALTY CANNOT BE IMPOSED. 3. THAT AS PER SECTION 122 OF TRANSFER OF PROPERTY ACT 1822 A GIFT IS COMPLETE IN RESPECT OF EXISTING MOVABLE AND IMMOVABLE PROPERTY WHEN THERE IS AN TRANSFER OF SUCH PROPERTY BY A PERSON CALLED DONEE. IF THESE CONDITIONS ARE SATISFIED THEN A GIFT IS COMPLETE AND IS NOT OPEN FOR THE CHALLENGE UNTIL TH E SAME IS PROVED TO THE CONTRARY WITH THE COGENT AND STRONG E VIDENCE. ITA NO.5582/DEL/2013 PAGE 2 OF 4 4. THAT I HAD DISCHARGED BY BURDEN BY ESTABLISHING THE IDENTITY OF THE DONOR, CAPACITY OF THE DONOR TO GIV E THE GIFT AND GENUINENESS OF THE TRANSACTION. 5. THAT LD. ASSESSING OFFICER HAS NOT BROUGHT ANY D IRECT OR INDIRECT MATERIAL ON RECORD TO HOLD THAT THE TRANSA CTION IS NOT GENUINE. 6. THAT THE LD HAS DISCUSSED PROBABILITIES AND LD C IT(A) HAS DISCUSSED POSSIBILITY WHILE UPHOLDING PENALTY ON ME . THIS IS IN CONTRAST OF FOUNDATION OF LAW THAT SAYS IT IS BETT ER THAT TEN GUILTY PERSONS ESCAPE THAN THAT ONE INNOCENT SUFFER WIL LIAM BLACKSTONE . RELIEF CLIAMED :- 1. PENALTY ORDER PASSED BY LD. ACIT MAY PLEASE BE S ET ASIDE AND PENALTY BE REVOKED. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS CONTENDED THAT THE ASSESSING OFFICER HAS NOT ISSUED ANY NOTICE FOR INITIATING PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE INCOME-TA X ACT, 1961 [THE ACT] BEFORE LEVYING THE PENALTY. IN SUPPORT OF HIS CONT ENTION, HE HAS INVITED OUR ATTENTION TO THE PROCEEDINGS RECORDED BY THE ASSESS ING OFFICER. IT IS ALSO SUBMITTED THAT BEFORE THE CIT(APPEALS), HE HAS RAIS ED A SPECIFIC ARGUMENT IN THIS REGARD, BUT THE CIT(APPEALS) HAS NOT GIVEN ANY FINDING THEREON. SINCE THE PENALTY WAS LEVIED WITHOUT ISSUING A NOTI CE FOR INITIATING THE PENALTY PROCEEDINGS, THE PENALTY CONFIRMED BY THE C IT(APPEALS) DESERVES TO BE SET ASIDE. 3. THE LD. DR, ON THE OTHER HAND, HAS CONTENDED THA T BEFORE THE CIT(APPEALS), ASSESSEE HAS NOT TAKEN ANY GROUND IN THIS REGARD AND MORE ITA NO.5582/DEL/2013 PAGE 3 OF 4 SO, HE HAS NOT PRESSED THE GROUND WITH REGARD TO TH E OPPORTUNITIES AFFORDED TO THE ASSESSEE. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT BEFORE THE CIT(A PPEALS) THE ASSESSEE HAS NOT TAKEN A SPECIFIC GROUND WITH RESPECT TO SERVICE OF NOTICE FOR INITIATING PENALTY PROCEEDINGS. SHE HAS SIMPLY RAISED A GROUN D WITH REGARD TO THE OPPORTUNITIES AFFORDED TO THE ASSESSEE. WE HAVE AL SO CAREFULLY EXAMINED THE DOCUMENTS FILED BEFORE US AND ON PERUSAL, WE FI ND FORCE IN THE CONTENTION OF THE ASSESSEE, BUT CLINCHING EVIDENCE IS NOT AVAILABLE ON THE BASIS OF WHICH DECISION CAN BE TAKEN. WE ARE, THER EFORE, OF THE VIEW THAT LET THE ISSUE OF SERVICE OF NOTICE FOR INITIATING P ENALTY PROCEEDINGS BE RE- EXAMINED BY THE CIT(APPEALS). ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE, WI TH A DIRECTION TO READJUDICATE THE ISSUE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF SEPTEMBER 2016. SD/- SD/- ( L.P. SAHU ) (SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER NEW DELHI, DATED, THE 22ND SEPTEMBER, 2016. /D S/ ITA NO.5582/DEL/2013 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR, ITAT, NEW DELHI.