Smt. Dr. Jatinder Bhatia, Noida V. ACIT, Noida

ITA 571/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3480 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 04-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJOG KAPOOR
• Section: 271(1)(c); 143(3); 274

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI !' !' !' !' $ $$ $ $ $$ $' ' ' ' &' & &' & &' & &' & ( ( ( ( BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SH.O.P .KANT, ACCOUNTANT MEMBER ' ' ' '$ $$ $ / ITA NO.571/DEL/2016 )) )) )) )) / ASSESSMENT YEAR: 2006-07 SMT. (DR.) JATINDER BHATIA, C-1/2, SECTOR-31, NOIDA. PAN-ACCPB1084H. .......... *+ /APPELLANT VS THE ACIT, CIRCLE-1, NOIDA. . ,-*+ / RESPONDENT *+.& / APPELLANT BY : SH. GAGAN KUMAR, ADV. & SH. AMIT KAUSHIK, ADV. ,-*+.& / RESPONDENT BY : SH. SANJOG KAPOOR, SR.DR .' / DATE OF HEARING: 28.11.2019 /0.' / DATE OF PRONOUNCEMENT: 29.11.2019 & & & & / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY ASSESSEE IS AGA INST ORDER OF CIT(A)-1, NOIDA DATED 30.11.2015 RELATING TO ASSESS MENT YEAR 2006-07 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF T HE INCOME-TAX ACT, 1961 (IN SHORT ACT). 2 ITA NO.571/DEL/2016 ASSESSMENT Y EAR: 2006-07 2. THE PRELIMINARY ISSUE RAISED IN THE PRESENT APPE AL IS AGAINST THE NON-RECORDING OF SATISFACTION BY THE ASSESSING OFFI CER WHILE INITIATING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 3. ON THE PERUSAL OF RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, WE FIND THAT THE ISSUE RAISED BY T HE ASSESSEE VIDE GROUND OF APPEAL NO.2 BEFORE US IS THE JURISDICTION AL ISSUE AND WE PROCEED TO DECIDE THE SAME. THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT IN WHICH THE LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE WERE RECOMPUTED. THE SE COND ADDITION WHICH WAS MADE WAS ON ACCOUNT OF REPAYMENT OF UNSECURED L OANS BEING OUT OF UNDISCLOSED FUNDS AVAILABLE WITH THE ASSESSEE. WHI LE MAKING BOTH THESE ADDITIONS, THE ASSESSING OFFICER ADDED THE AMOUNT A ND OBSERVED FOR WHICH PENALTY PROCEEDINGS U/S 271(1)(C) ARE BEING INITIATED SEPARATELY. THE AO HAS FAILED TO RECORD THE SATISFACTION AS T O WHICH LIMB OF SECTION 271(1)(C) OF THE ACT HAS NOT BEEN FULFILLED BY THE ASSESSEE. THE ISSUE THUS ARISES IS THAT IN THE ABS ENCE OF RECORDING SUCH SATISFACTION, THE PENALTY PROCEEDINGS ARE TO BE HEL D TO BE CORRECTLY INITIATED. 4. PENALTY FOR CONCEALMENT IS LEVIABLE WHERE THE AS SESSEE HAD EITHER CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. THE AO WHILE COMPLETING THE ASSESSMENT HAS TO RECORD S ATISFACTION IN THIS REGARD, IN ORDER TO SHOW CAUSE THE ASSESSEE AS TO W HICH LIMB TO SECTION 271(1)(C) OF THE ACT HAS NOT BEEN SATISFIED BY IT. THIS IS THE BASIC 3 ITA NO.571/DEL/2016 ASSESSMENT Y EAR: 2006-07 CONDITION OF THE AFORESAID SECTION. ON PERUSAL OF THE ASSESSMENT ORDER PASSED FOR THE INSTANT ASSESSMENT YEAR REFLECTS NO SUCH SATISFACTION HAS BEEN RECORDED. IN THE ABSENCE OF THE SAME, THE ASS ESSEE WAS NOT IN A POSITION TO MEET THE REQUIREMENTS OF THE SECTION. MERELY, AN ORDER ISSUING NOTICE U/S 274 R.W.S 271(1)(C) OF THE ACT D O NOT MEET THE CONDITIONS OF THE SAID INITIATION OF PENALTY PROCE EDINGS. IN THE ABSENCE OF THE SAME, THERE IS NO MERIT IN THE PENALTY ORDER PASSED IN THE CASE. IN THIS REGARD, WE FIND SUPPORT FROM THE RATIO LAID DO WN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM). WE HOLD THAT IN THE ABSENCE OF RECORDING PR OPER SATISFACTION, WHILE INITIATING THE PENALTY PROCEEDINGS U/S 271(1) (C) OF THE ACT, ORDER PASSED U/S 271(1)(C) OF THE ACT SUFFERS FROM INFIRM ITY. HENCE, THE SAME IS CANCELLED. GROUND OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF NOVEMBER, 2019. SD/- SD/- (O.P.KANT) (SUSHMA CHOW LA) &' &' &' &' /ACCOUNTANT MEMBER /JUDICIAL MEMBER / ' DATED : 29 TH NOVEMBER, 2019 . * AMIT KUMAR * 4 ITA NO.571/DEL/2016 ASSESSMENT Y EAR: 2006-07 &.,23&24 COPY OF THE ORDER IS FORWARDED TO : 1. *+ / THE APPELLANT 2. ,-*+ / THE RESPONDENT 3. 5 6 7 / THE CIT(A) 4. 8 5 / THE PR. CIT 5. 6. 29:, / DR, ITAT, DELHI :);4 GUARD FILE. & & & & / BY ORDER , -2, // TRUE COPY // => ? , ASSISTANT REGISTRAR, ITAT, DELHI