M/s Woolsheel Traders (P) Ltd., New Delhi V. ITO, New Delhi

ITA 5932/DEL/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4743 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 14-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA SENIOR
• Keywords: Opportunity of being heard
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5932/DEL./2010 (ASSESSMENT YEAR : 2004-05) M/S. WOOLSHEEL TRADERS (P) LTD., VS. ITO, WARD 18 (3), C 12, GULMOHAR PARK, NEW DELHI. NEW DELHI 110 049. (PAN : AAACW2751R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH KAUSHIK ADVOCATE AND SHRI RAKESH AGARWAL, FCA REVENUE BY : SHRI SAMEER SHARMA, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE CIT (APPEALS)-XXI, NEW DELHI DATED 29.11.2010 FOR ASSES SMENT YEAR 2004-05. 2. THE ASSESSEE COMPANY IS TRADING IN CARPET, DURRY AND SHAWLS. A SURVEY U/S 133A OF THE INCOME-TAX ACT, 1961 WAS CARRIED OUT IN THE BUSINESS PREMISES OF THE ASSESSEE ON 20.10.2003. THE ASSESSEE SURRENDERED IN COME OF RS.1.75 CRORES FOR TWO YEARS, I.E., RS.90 LACS IN FINANCIAL YEAR 2002-03 A ND RS.85 LACS IN FINANCIAL YEAR 2003- 04. FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSEE W ITHDREW THE SURRENDER OF RS.35 LACS. HOWEVER, THE ASSESSING OFFICER MADE THE ADDIT ION WHICH HAS BEEN SUSTAINED BY CIT (A) AS WELL AS BY THE ITAT IN THE QUANTUM APPEA L. THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF RS.12,55,625/- BEING 100% OF THE TAX TO BE EVADED ON THE ITA NO.5932/DEL/2010 2 INCOME OF RS.35 LACS. AGAINST WHICH, THE ASSESSEE H AS FILED THE APPEAL BEFORE THE CIT (A) AND THE CIT (A) HAS SUSTAINED THE PENALTY BY HO LDING AS UNDER :- 3.4 I HAVE GONE THROUGH THE WRITTEN SUBMISSION AND IN MY CONSIDERED OPINION THE APPELLANT HAS NO CASE AS AMO UNT IN QUESTION AMOUNTING TO RS.35,00,000/- HAS RIGHTLY BEEN ADDED BY THE A.O. AND CONFIRMED BY TWO FACTS FINDING AUTHORITIES VIZ. CIT (A) AND ITAT, WHICH HAS ALREADY BEEN DISCUSSED. SO ASSESSEE S GROUNDS OF APPEAL NO.1, 2, 3 AND 4 ARE BEING REJECTED. 3. NOW, THE ASSESSEE IS IN APPEAL BEFORE US BY TAKI NG THE FOLLOWING GROUNDS OF APPEAL :- 1. THE ORDER OF THE LEARNED CIT (A)-XXI IS CONTRAR Y TO LAW, CONTRARY TO FACT OF THE CASE AND IS NOT A SPEAKING ORDER. 2. THE ORDER OF THE LEARNED CIT (A)-XXI IS BAD IN L AW. 3. THE LEARNED CIT (A)-XXI ERRED IN UPHOLDING THE O RDER OF PENALTY PASSED U/S 271(1)(C) DATED 30.3.2009 AND IG NORING THE FACTS BROUGHT ON RECORD BY THE APPELLANT. 4. THE APPELLATE CRAVES LEAVE TO ADD OR AMEND ANY G ROUND OF APPEAL. 4. AFTER HEARING BOTH THE SIDES, WE FIND THAT ORDER OF CIT (A) IS NOT A SPEAKING ORDER. THEREFORE, IN THE INTEREST OF JUSTICE AND EQ UITY, WE FIND IT APPROPRIATE TO RESTORE THE ISSUE OF LEVYING THE PENALTY TO THE FILE OF THE CIT (A) TO DECIDE THE ISSUES RAISED BY THE ASSESSEE IN HIS APPEAL BY A SPEAKING ORDER AFTE R PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF AUGUST, 2013. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 27 TH DAY OF AUGUST, 2013/TS ITA NO.5932/DEL/2010 3 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT NEW DELHI