Sh. Vipul Kant Upadhyay, New Delhi V. ITO, New Delhi

ITA 5643/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86515 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 10-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : H NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI C.M.GARG , J.M. ITA NO: 5643 /DEL/20 1 2 AY : - 200 6 - 07 SH. VIPUL KANT UPADHYAY VS. ITO, WARD 11(3) C/O YOGESH KAPOOR & ASSOCIATES NEW DELHI 102A CYCLE MARKET JHANDEWALAN EXTN NEW DELHI 110 055 PAN: AAGPU 2530 H (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. JP CHANDRAKAR, SR.D.R. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) - X V , NEW DELHI DATED 3.9.2012 FOR THE AY 200 6 - 07 WHEREIN PENALTY LEVIED U/S 271(1)(C) OF THE ACT WAS CONFIRMED EX PARTE. 2. FACTS IN BRIEF : - THE ASSESSEE IS AN INDIVIDUAL AND FILED ITS RETURN OF INC OME ON 28.6.2006 DECLARING INCOME OF RS.91,21,480/ - . THE A SSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143(3) DETERMINING THE INCOME AT RS.97,97,187/ - . PENALTY WAS INITIATED AND LEVIED ON ACCOUNT OF ADDITIONS MADE ON INTEREST INCOME FROM BANK AND AN OTHER ADDITION ON ACCOUNT OF INCOME FROM SHORT TERM CAPITAL GAIN OF RS.5,29,622/ - . THE ASSESSEE REPLIED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT HAS NOTED CERTAIN MISTAKES COMMITTED BY ACCOUNTANT AND HAS VOLUNTARILY COMPLIED WITH THE SAME. HE PLEADED THAT THE DEFAULT WAS NOT INTENTIONAL OR WILFUL. HIS PLEA WAS REJECTED BY THE AO. ITA 5643/DEL/2012 AY: 2006 - 07 VIPUL KANT UPADHYAY, N.DEL 2 3. ON APPEAL THE FIRST APPELLATE AUTHORITY DID NOT AGREE WITH THE ASSESSEE AND HA D PASSED AN EX PARTE ORDER. THUS THE ASSESSEE IS IN APPEAL BEFORE US. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUAL OF NOTICE. THERE IS NO PETITION FOR ADJOURNMENT EITHER. UNDER THESE CIRCUMSTANCES WE DISPOSE OF THE CASE EX PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.D.R. 5. HEARD THE LD. SR. D.R. SHRI J.P.CHANDRAKAR ON BEHALF O F THE REVENUE. 6. ON A CAREFUL PERUSAL OF THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER, WE FIND THAT THE ADDITIONS IN QUESTION HAVE ARISEN DUE TO GENUINE MISTAKES BY THE ASSESSEE AT THE TIME OF FILING OF THE RETURN. UNDER THE CIRCUMSTANCES NO PENAL TY CAN BE LEVIED U/S 271(1)(C) OF THE ACT . T HE HON BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS P.LTD. 322 ITR 158 (SC) , HELD THAT M ERELY BECAUSE THE GROSS PROFIT AS CLAIMED BY ASSESSEE HAS NOT BEEN ACCEPTED BY REVENUE, PENALTY U/ S 271(1)(C) OF THE ACT IS NOT ATTRACTED. MERE MAKING OF CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF ASSESSEE . HENCE WE CANCEL THE SAME AND ALLOW THE APPEAL OF THE ASSESSEE . 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JANUARY, 2015. SD/ - SD/ - ( C.M. GARG ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 07 TH JANUARY, 2015. *MANGA ITA 5643/DEL/2012 AY: 2006 - 07 VIPUL KANT UPADHYAY, N.DEL 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR