M/s Hind Air Star Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5934/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6132 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 21-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift
• Section: 271(1)(c); 40A(3); 143(3); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.5934/DEL/2016 ASSESSMENT YEAR : 2012-13 M/S. HIND AIR STAR PVT.LTD., B - 3, FRIENDS COLONY (WEST), NEW DELHI-110065. PAN-AABCH0805L VS. DCIT, CIRCLE-11(2), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. AMIT KATOCH, SR.DR DATE OF HEARING 05.08.2019 DATE OF PRONOUNCEMENT 07.08.2019 O R D E R PER SUCHITRA KAMBLE, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.09.2016 PASSED BY THE CIT(A)-12, NEW DELHI IN RE LATION TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1 . THAT THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) O F THE IT ACT AT RS.5,63,979/- AND UPHELD BY THE CIT(APPEALS) IS ARB ITRARY, UNJUST AND BAD IN LAW. 2. THAT THE ASSESSEE HAS NOT FURNISHED ANY INACCURA TE PARTICULARS, AS ALLEGED BY THE AO, IN RESPECT OF THE DISALLOWANCE M ADE U/S 40A(3) AT RS.4,86,001/- AND HAS ALSO NEITHER FURNISHED ANY INACCURATE PARTICULARS NOR CONCEALED PARTICULARS IN RESPECT OF DISALLOWANCE OF 10% OF THE BUSINESS PROMOTION EXPENSES MADE AT RS.1 2,52,265/- AND CONSEQUENTLY THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AT RS.5,63,979/- IS ARBITRARY, UNJUST AND BAD IN LAW. 2. THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 02.03 .2015 AT INCOME OF RS. 1,23,39,600/-. PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, ITA NO.5934/DEL/2016 ASSESSMENT YEAR : 2012-13 PAGE | 2 1961 WAS INITIATED FOR FURNISHING OF INACCURATE PAR TICULARS OF INCOME ON ACCOUNT OF ADDITION MADE U/S 40A(3) OF THE ACT AMOU NTING TO RS. 4,86,001/- AND ADDITION MADE ON ACCOUNT OF DISALLOW ANCE OF BUSINESS PROMOTION EXPENSES OF RS. 12,52,265/- ON ACCOUNT OF NON JUSTIFICATION OF THE SAID EXPENSES/CLAIMS. FURTHER NOTICE DATED 02.0 3.2015 FOR LEVY OF PENALTY U/S 274 R.W.S. 271(1)(C) WAS ISSUED AND SER VED UPON THE ASSESSEE. FURTHER, SHOW CAUSE NOTICE FOR LEVY OF PE NALTY U/S 271(1)(C) DATED 31.07.2015 WAS ISSUED AND SERVED ON THE ASSES SEE. IN RESPONSE THERETO, THE ASSESSEE FILED REPLY DATED 19.09.2015. THE ASSESSING OFFICER IMPOSED PENALTY ON BOTH THE ADDITIONS. 3. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 4. DURING THE HEARING, NONE APPEARED FOR THE ASSESS EE DESPITE THE NOTICE HAS BEEN SERVED UPON THE ASSESSEE AT THE GIV EN ADDRESS IN THE FORM 36 OF APPEAL MEMO. THEREFORE, WE ARE PROCEEDIN GS WITH THE MATTER BY TAKING INTO ACCOUNT THE SUBMISSIONS OF THE ASSES SEE BEFORE THE ASSESSING OFFICER AND THE CIT(A). 5. THE LD. DR RELIED UPON THE PENALTY ORDER, ASSES SMENT ORDER AND THE ORDER OF THE CIT(A). 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL AVAILABLE ON RECORD. AS REGARDS PENALTY IN RESPECT OF DISALLOWANCE OF RS. 4,86,001/- U/S 40A(III) OF THE ACT, THE SAID ISSUE IS DEBATABLE AND THEREFORE IT CANNOT BE STATED THAT TH E ASSESSEE FILED INACCURATE PARTICULARS OF INCOME OR CONCEALED THE I NCOME. THEREFORE, PENALTY LEVIED U/S 271(1)(C) AMOUNTING TO RS. 5,63 ,980/- IS NOT TENABLE AND HENCE THE SAME IS DELETED. AS REGARDS PENALTY I MPOSED ON DISALLOWANCE OF BUSINESS PROMOTION EXPENSES, THE AS SESSEE HIMSELF HAS ITA NO.5934/DEL/2016 ASSESSMENT YEAR : 2012-13 PAGE | 3 NOT DISCLOSED THE DETAILS OF THE SAID EXPENSES DESP ITES THE SPECIFIC QUESTIONNAIRE PUT UP TO THE ASSESSEE BY THE ASSESSI NG OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THERE IS A CLEAR ST ATEMENT MADE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS BEFORE THE CIT(A) THAT BECAUSE OF THE BUSINESS EXIGENCIES THE ASSESSEE CANNOT REVEAL THE NAME WHOM THE ASSESSEE HAS GIFTED THE AM OUNT. IT IS PERTINENT TO NOTE THAT THE ASSESSEE ADMITTED THAT T HE AMOUNTS WERE GIFTS AND DETAILS OF THE SAME CANNOT BE DISCLOSED. THIS ESTABLISHED THAT THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PR OCEEDINGS FILED/FURNISHED INACCURATE PARTICULARS OF INCOME. T HIS IS A CLEAR CASE OF FILING INACCURATE PARTICULARS OF INCOME WITHOUT GIV ING ANY DETAILS DESPITE SPECIFICALLY ASKED BY THE REVENUE AUTHORITI ES. HENCE, IN THIS RESPECT PENALTY U/S 271(1)(C) IS SUSTAINED BY US. H ENCE, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH DAY OF AUGUST, 2019. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBL E) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07.08.2019 * AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.5934/DEL/2016 ASSESSMENT YEAR : 2012-13 PAGE | 4 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE FAIR ORDER IS PLACED FOR PRONOUNC EMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR DATE OF DISPATCH OF THE ORDER