ACIT, Central Circle- 26, , NEW DELHI V. KRISHAN KUMAR MODI, NEW DELHI

ITA 5915/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0060 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 15-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT JAIN; DEEPASHREE RA
• Keywords: Question of law; Notional interest
• Section: 271(1)(c); 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES F : DELHI [THROUGH VIDEO CONFERENCING] BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA.NOS.5911, 5912, 5913, 5914 & 5915/DEL./2017 ASSESSMENT YEARS 2008-2009, 2009-10, 2010-11, 2011-12 & 2012-2013 THE ACIT, CENTRAL CIRCLE-26, ROOM NO.358, E2, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. PIN 110 055 VS. SHRI KRISHAN KUMAR MODI, A-1, MAHARANI BAGH, ASHRAM CHOWCK, NEW DELHI. PIN 110 054. PAN AANPM0159M (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI N.K. BANSAL, SR. D.R. FOR ASSESSEE : SHRI ROHIT JAIN, ADVOCATE & MS. DEEPASHREE RAO, ADVOCATE DATE OF HEARING : 20 . 07 .20 21 DATE OF PRONOUNCEMENT : 20. 07 .20 2 1 ORDER PER BENCH : THE ABOVE BATCH OF FIVE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 07.06.2017 OF THE LD. CIT(A)-29, NEW DELHI, RELEVANT TO THE A.YS. 2008-2009 TO 2012-2013 RESPECTIVELY. 2 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 2. THE GROUNDS RAISED BY THE REVENUE IN ALL THESE APPEALS ARE AS UNDER : ITA.NO.5911/DEL./2017 A.Y. 2008-2009 [REVENUE] : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.6,29,271/- ON THE CONCEALED INCOME OF RS.18,51.345/- WHICH WAS IMPOSED BY THE AO ON ACCOUNT OF UNDISCLOSED INTEREST INCOME IN HSBC GENEVA. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY, DISREGARDING THE FACTS THAT THE ASSESSEE HAS DELIBERATELY CONCEALED HIS INCOME OF RS.18,51,345/- IN HSBC, GENEVA. 3. THAT THE GROUNDS OF APPEALS ARE WITHOUT PREJUDICE TO EACH OTHER. 3 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL ITA.NO.5912/DEL./2017 A.Y. 2009-2010 [REVENUE] : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.7,47,795/- ON THE CONCEALED INCOME OF RS.22,00,045/- WHICH WAS IMPOSED BY THE AO ON ACCOUNT OF UNDISCLOSED INTEREST INCOME IN HSBC GENEVA. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY, DISREGARDING THE FACTS THAT THE ASSESSEE HAS DELIBERATELY CONCEALED HIS INCOME OF RS.22,00,045/- IN HSBC, GENEVA. 4 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 3. THAT THE GROUNDS OF APPEALS ARE WITHOUT PREJUDICE TO EACH OTHER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL ITA.NO.5913/DEL./2017 A.Y. 2010-2011 [REVENUE] : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.7,29,148/- ON THE CONCEALED INCOME OF RS.23,59,704/- WHICH WAS IMPOSED BY THE AO ON ACCOUNT OF UNDISCLOSED INTEREST INCOME IN HSBC GENEVA. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY, DISREGARDING THE FACTS THAT THE ASSESSEE HAS DELIBERATELY CONCEALED HIS INCOME OF RS.23,59,704/- IN HSBC, GENEVA. 5 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 3. THAT THE GROUNDS OF APPEALS ARE WITHOUT PREJUDICE TO EACH OTHER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL ITA.NO.5914/DEL./2017 A.Y. 2011-2012 [REVENUE] : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.7,28,890/- ON THE CONCEALED INCOME OF RS.23,58,868/- WHICH WAS IMPOSED BY THE AO ON ACCOUNT OF UNDISCLOSED INTEREST INCOME IN HSBC GENEVA. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY, DISREGARDING THE FACTS THAT THE ASSESSEE HAS DELIBERATELY CONCEALED HIS INCOME OF RS.23,58,868/- IN HSBC, GENEVA. 6 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 3. THAT THE GROUNDS OF APPEALS ARE WITHOUT PREJUDICE TO EACH OTHER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL ITA.NO.5915/DEL./2017 A.Y. 2012-2013 [REVENUE] : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.9,04,898/- ON THE CONCEALED INCOME OF RS.29,28,474/- WHICH WAS IMPOSED BY THE AO ON ACCOUNT OF UNDISCLOSED INTEREST INCOME IN HSBC GENEVA. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY, DISREGARDING THE FACTS THAT THE ASSESSEE HAS DELIBERATELY CONCEALED HIS INCOME OF RS.29,28,474/- IN HSBC, GENEVA. 7 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. 3. THAT THE GROUNDS OF APPEALS ARE WITHOUT PREJUDICE TO EACH OTHER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR FORGO ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL 3. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET SUBMITTED THAT THE ADDITION BASED ON WHICH PENALTY HAS BEEN LEVIED HAS ALREADY BEEN DELETED BY THE TRIBUNAL IN ITA.NO.3951/DEL./2017 TO ITA.NO.3956/DEL./2017 VIDE CONSOLIDATED ORDER DATED 05.07.2019 FOR THE A.YS. 2007- 2008 TO 2012-2013 RESPECTIVELY. REFERRING TO PARA-6.4 OF THE ORDER OF THE TRIBUNAL, HE IS SUBMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE A.O. ON ACCOUNT OF NOTIONAL INTEREST IN THE FOREIGN BANK ACCOUNT AT GENEVA. HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL DELHI HIGH COURT IN I.T.A.NOS. 48 TO 54 OF 2021 VIDE ORDER DATED 22.02.2021 AND THE APPEALS FILED BY THE REVENUE HAS BEEN DISMISSED. HE 8 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. ACCORDINGLY SUBMITTED THAT SINCE THE VERY BASIS ON WHICH THE PENALTY HAS BEEN LEVIED BY THE A.O. HAS BEEN DELETED BY THE LD. CIT(A) WHICH WAS UPHELD BY THE TRIBUNAL AND ON FURTHER APPEAL BY THE REVENUE THE HONBLE DELHI HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE REVENUE, THEREFORE, THE GROUNDS RAISED BY THE REVENUE DO NOT SURVIVE AND ACCORDINGLY, THE APPEALS FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. 4. THE LD. D.R, ON THE OTHER HAND, FAIRLY SUBMITTED THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL AND THE APPEALS FILED BY THE REVENUE HAS BEEN DISMISSED BY THE HONBLE DELHI HIGH COURT. 5. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE RECORD. WE FIND IN ALL THESE APPEALS THE A.O. HAS LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961 IN RESPECT OF ADDITIONS MADE BY HIM ON ACCOUNT OF NOTIONAL INTEREST EARNED FROM THE FOREIGN BANK ACCOUNT I.E., HSBC, GENEVA. WE FIND THE LD. 9 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. CIT(A) DELETED THE PENALTY LEVIED BY THE A.O. UNDER SECTION 271(1)(C) OF THE I.T. ACT ON THE GROUND THAT THE ADDITION WITH REGARD TO NOTIONAL INTEREST HAS BEEN DELETED AND, THEREFORE, THE PENALTY DOES NOT SURVIVE. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE PENALTY LEVIED BY THE A.O. ON ACCOUNT OF NOTIONAL INTEREST EARNED FROM HSBC, GENEVA FOR ALL THESE YEARS UNDER CONSIDERATION. ADMITTEDLY, IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS ALREADY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND THE APPEAL FILED BY THE REVENUE HAS BEEN DISMISSED BY THE HONBLE DELHI HIGH COURT BY OBSERVING AS UNDER : 8. WE DO NOT FIND ANY PERVERSITY IN THE AFORESAID OBSERVATIONS MADE BY THE LEARNED ITAT IN RESPECT OF ADDITIONS MADE ON QUANTUM AND INTEREST. IN VIEW OF THE AFORESAID, THE QUESTION OF LAW RAISED BY THE APPELLANT-REVENUE IN THE PRESENT APPEALS IN RESPECT OF QUANTUM DOES NOT ARISE FOR OUR CONSIDERATION. SINCE THE ADDITION ON QUANTUM CANNOT BE SUSTAINED, THE ADDITION OF 10 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. INTEREST CANNOT SURVIVE. THUS, NO QUESTION OF LAW ARISES IN RESPECT OF DELETION OF ADDITION OF INTEREST COMPONENT. 5.1. SINCE THE TRIBUNAL HAS ALREADY UPHELD THE ORDER OF THE LD. CIT(A) IN DELETING THE QUANTUM ADDITION AND THE HONBLE DELHI HIGH COURT HAS ALREADY DISMISSED THE APPEAL FILED BY THE REVENUE, THEREFORE, THE VERY BASIS ON WHICH THE PENALTY WAS LEVIED BY THE A.O. DOES NOT SURVIVE. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) FOR ALL THE FIVE ASSESSMENT YEARS UNDER APPEAL DELETING THE PENALTY ON ACCOUNT OF ADDITION OF NOTIONAL INTEREST IS UPHELD. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE IN ALL THE FIVE ASSESSMENT YEARS UNDER APPEAL ARE DISMISSED. 6. IN THE RESULT, ALL THE FIVE APPEALS OF THE REVENUE ARE DISMISSED. 11 ITA.NOS.5911 TO 5915/DEL./2017 SHRI KRISHAN KUMAR MODI, NEW DELHI. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E., ON 20.07.2021. SD/- SD/- (AMIT SHUKLA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI, DATED 20 TH JULY, 2021 VBP/- COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT F BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.