ITO, New Delhi V. M/s Marudhar Services Pvt. Ltd., New Delhi

ITA 5971/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4216 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 21-04-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 28-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NO.5971/DEL/2010 ASSESSMENT YEAR : 1994-95 INCOME TAX OFFICER, WARD 6 (2), NEW DELHI. VS. M/S MARUDHAR SERVICES PVT. LTD., 4, COMMUNITY CENTRE, EAST OF KAILASH, NEW DELHI. PAN : AAACM8373M (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI A.K. MONGA, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER OF THE CIT (A) DATED 8 TH SEPTEMBER, 2010 FOR ASSESSMENT YEAR 1994-95. GROUNDS OF APPEAL READ AS UNDER:- 1. THE ORDER OF THE LEARNED CIT (APPEALS) IS ERRONEO US AND CONTRARY TO FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) HAS ERRED IN DELETING THE PENALTY OF RS.12,13,758/- LEVIED THE A. O. U/S 271(1)(C) OF THE IT ACT. 2.1 THE LD. CIT (A) IGNORED THE FACT THAT THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF ITS INCOME BY CLAIMING INCOME FROM OTHER SOURCES AS AGRICULTURAL INCOME. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, OR AMEND ANY GROUNDS OF THE APPEAL RAISED ABOVE AT THE ITA NO.5971/DEL/2010 2 AMEND ANY GROUNDS OF THE APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 2. THE IMPUGNED ASSESSMENT IN RESPECT OF WHICH CONCEALME NT PENALTY HAS BEEN LEVIED IS AN ORDER DATED 28 TH MARCH, 2002 PASSED U/S 143 (3)/250 AT AN INCOME OF ` 20,84,560/-. LD. CIT (A) IN QUANTUM PROCEEDINGS VIDE HIS ORDER DATED 5 TH MAY, 2004 HAD ENHANCED THE QUANTUM AND INCOME WAS DETERMINED AT ` 23,45,426/- A ND ON SUCH ASSESSED INCOME PENALTY OF ` 12,13,758/- WAS IMPOSED. BE FORE THE CIT (A), IT IS THE CASE OF THE ASSESSEE THAT A RETURN OF INCO ME WAS FILED ON 26 TH NOVEMBER, 1996 AT AN INCOME OF ` 12,46,005/- OUT O F WHICH ` 12,79,029/- PERTAINED TO AGRICULTURAL INCOME. THE ASSESSEE ALSO DECLARED PROJECT INCOME OF ` 6,66,125/- AND OTHER I NCOME OF ` 3,83,022/-. THE ASSESSING OFFICER DID NOT ACCEPT THE C LAIM OF THE ASSESSEE REGARDING AGRICULTURAL INCOME AND THE EXPENSES W ERE CLAIMED AGAINST THAT AMOUNTING TO ` 10,76,045/- AND ONLY A SUM OF ` 2 LAC WAS ALLOWED. LEARNED CIT (A) HELD THAT AGRICULT URAL INCOME SHOULD BE ASSESSED AS INCOME FROM OTHER SOURCES AND HE ALLOWED ` 2,28,913/- BEING 60% OF THE INCOME OF ` 3,83,002/- AS EXPENDITURE AS AGAINST ` 2 LAC ALLOWED BY THE ASSESSING OFFICER. AGGRI EVED, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL WHICH WAS D ECIDED VIDE ORDER DATED 23 RD NOVEMBER, 2007 IN ITA NO.2983 & 2984/DEL/2004 FOR ASSESSMENT YEARS 1994-95 AND 1993-94 AND AGRICULTURAL IN COME OF THE ASSESSEE WAS ESTIMATED AT `4,70,000/- AND ` 5,10,000/- AN D AGRICULTURAL INCOME FROM SALE OF SCRAP AT ` 20,792/- AND ` 29,029/- FOR ASSESSMENT YEARS 1993-94 AND 1994-95 RESPECTIVELY. WHILE DOING SO, THE TRIBUNAL HAD ESTIMATED A RATE OF ` 2,500/- PER A CRE FOR ASSESSMENT YEAR 1993-94 AND ` 3,000/- PER ACRE FOR ASSESSMENT YEAR 1994-95. SO AS IT RELATES TO THE EXPENSES, THE TRIBUNAL RESTORED THE MATTER BACK TO THE ASSESSING OFFICER TO DECIDE THE NATURE OF SUCH RECEI PT AGAINST WHICH SUCH EXPENSES WERE CLAIMED. THE ASSESSING OFFICER, IN PURSUANCE OF THOSE DIRECTIONS HAS PASSED ORDER DATED 26 TH DECEMBER, ITA NO.5971/DEL/2010 3 2008 AND HAS ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT ` 18,06,997/-. IN FRESH ASSESSMENT ORDER DATED 26 TH DECEMBER, 2008 THE ASSESSING OFFICER DID NOT INITIATE PENALTY PROCEEDINGS A ND, IN THE MEAN TIME, THE ASSESSING OFFICER VIDE ORDER DATED 22 ND MARCH, 2006 IMPOSED THE IMPUGNED PENALTY OF A SUM OF ` 12,13,758/- AS AGA INST THE INCOME DETERMINED BY CIT (A) AT ` 23,45,426/- VIDE ORDER O F CIT (A) DATED 5 TH MAY, 2004. IT WAS ALSO SUBMITTED THAT FOR ASSESSMENT YEAR 1993-94 THE TRIBUNAL VIDE ITS ORDER DATED 20 TH NOVEMBER, 2009 IN ITA NO.2330/DEL/2007 HAS CANCELLED THE PENALTY. THE REL EVANT OBSERVATIONS OF THE TRIBUNAL FROM THAT DECISION HAS BEE N REPRODUCED BY CIT (A) AND ON THE BASIS OF THAT DECISION OF THE TR IBUNAL, THE IMPUGNED PENALTY HAS BEEN CANCELLED BY LEARNED CIT ( A) AGAINST WHICH THE DEPARTMENT IS AGGRIEVED, HENCE, IN APPEAL. 3. NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HOWEVER, ON THE FIXED DATE OF HEARING NONE WAS PRESENT ON BEHALF OF T HE ASSESSEE. AS THE ORDER OF CIT (A) IS BASED ON THE ORDER OF THE TRI BUNAL, WE PROCEEDED TO DECIDE THE PRESENT APPEAL AFTER HEARING LEARNED D R. 4. LEARNED DR, AFTER NARRATING THE FACTS AND RELYING UPON THE PENALTY ORDER, PLEADED THAT THE PENALTY HAS RIGHTLY BEEN IMPOSED BY THE ASSESSING OFFICER AND IT HAS WRONGLY BEEN CANCELLED BY THE CIT (A). 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LEARN ED DR. WE HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND TH E CONTENTS OF ORDER OF LEARNED CIT (A). IT IS OBSERVED THAT IN QUA NTUM THE APPEALS FOR ASSESSMENT YEAR 1993-94 AND 1994-95 WERE CUMULATIVE LY DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 23 RD NOVEMBER, 2007 IN WHICH THE AGRICULTURAL INCOME OF THE ASSESSEE WAS ESTIMATED FOR BOTH THE YEARS AND FOR EXPENSES THE MATTER WAS RESTORED BY THE TR IBUNAL TO THE FILE OF ASSESSING OFFICER. ON SIMILAR FACTS, FOR ASSESSMENT YEAR 1993-94 SIMILAR PENALTY WAS LEVIED WHICH HAS BEEN DELETED BY T HE TRIBUNAL VIDE ITA NO.5971/DEL/2010 4 ITS AFOREMENTIONED ORDER DATED 20 TH NOVEMBER, 2009. THE RELEVANT PORTION OF THE SAID ORDER HAS ALREADY BEEN REPRODUCED IN PARA 4 OF THE ORDER OF THE LEARNED CIT (A) WHICH IS AGAIN REPRODUC ED BELOW FOR THE SAKE OF CONVENIENCE:- ..SINCE THE PART OF THE AGRICULTURAL INCOME HAS BEEN ACCEPTED BY THE TRIBUNAL, IT IS CLEAR THAT THIS IS NOT THE CASE WHERE TOTALLY FALSE CLAIM OF AGRICULTURAL INCOME HAS B EEN MADE BY THE ASSESSEE. THE AREA OF THE LAND HAS ALSO BEEN QUANTIFIED AND DETERMINED IN THE ORDER OF THE TRIBUNAL. SINCE, TH E ASSESSEES CLAIM OF AGRICULTURAL INCOME HAS BEEN ACC EPTED IN PART BY ESTIMATING THE QUANTUM THEREOF IT CANNOT BE SAID THA T THE ASSESSEES CLAIM OF DECLARING AGRICULTURAL INCOME AT RS.10,50,000/- IS A FALSE CLAIM SO AS TO LEVY PENALTY . THE VARIOUS DETAILS AND PARTICULARS RELATING TO AGRICULTURAL INCOME HAS BEEN FURNISHED BY THE ASSESSEE AND WHICH HAS ALSO BEEN CO NSIDERED BY THE TRIBUNAL WHILE ESTIMATING THE AGRICULTURAL INCOME OF THE ASSESSEE AT RS.2,500/- PER ACRE IN THE ASSESSMENT YEAR 1993-94. IN THE LIGHT OF THE AFORESAID FACTS EMERGING FROM TRIBU NALS ORDER, IT IS CLEAR THAT ASSESSEES CLAIM HAS BEEN REJECTED MER ELY BY REDUCING THE QUANTUM AND NOT BY CONTENDING THAT THE ASSESS EE HAD NO AGRICULTURAL INCOME AT ALL OR HAD NOT CARRIED O UT ANY AGRICULTURAL OPERATIONS AND HAS FALSELY CLAIMED THE AG RICULTURAL INCOME IN THE RETURN OF INCOME. THEREFORE, CONSIDERI NG THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOV E, THE PENALTY ORDER PASSED BY THE A.O. AND FURTHER CONFIRMED BY THE LEARNED CIT (A) DOES NOT SURVIVE. WE, THEREFORE, CAN CEL THE PENALTY LEVIED BY THE A.O. 6. RELYING UPON THE SAID ORDER OF THE TRIBUNAL, LEAR NED CIT (A) HAS DELETED THE PENALTY WITH THE FOLLOWING OBSERVATIONS:- 5.0 IN THE LIGHT OF THE ABOVE FACTS AND IN VIEW OF THE HONBLE TRIBUNALS ORDER DATED 20.11.2009 IN ITA NO.2330/DEL /2007 FOR A.Y. 1993-94 IN THE APPELLANTS OWN CASE WHERE UNDER IDENTICAL FACTS PENALTY IMPOSED U/S 271 (1)(C) HAS BEEN CANCELL ED, THE IMPUGNED PENALTY IMPOSED FOR THE INSTANT YEAR, IS ALSO LIABLE TO BE CANCELLED. THE A.O. IS ACCORDINGLY DIRECTED TO CA NCEL THE PENALTY LEVIED BY HIM. 7. AS THE FACTS RELATING TO BOTH THE YEARS I.E. ASSESSMENT YEAR 1993- 94 AND THE IMPUGNED ASSESSMENT YEAR ARE SIMILAR, AND FOR ONE YEAR THE TRIBUNAL HAS ALREADY DELETED THE PENALTY, WE SEE NO REASON TO DIFFER WITH THE AFOREMENTIONED ORDER OF THE TRIBUNA L IN ASSESSEES OWN ITA NO.5971/DEL/2010 5 CASE ON SIMILAR FACTS. THEREFORE, WE SEE NO INFIRMITY IN THE ORDER OF THE CIT (A) VIDE WHICH THE IMPUGNED PENALTY HAS BEEN DEL ETED. WE DECLINE TO INTERFERE. 8. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.04.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 21.04.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES