Sh. Chandra Prakash Goel, New Delhi V. ITO, Hapur

ITA 6063/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3949 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income
• Section: 45(2); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDEN T & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-6063/DEL/2015 ( ASSESSMENT YEAR: 2010-11) CHANDRA PRAKASH GOEL C/O M/S RRA TAX INDIA D-28, SOUTH EXTENSION, PART-1, NEW DELHI. AATPG4288R VS ITO WARD-1 HAPUR ASSESSEE BY SH. SOMIL AGRAWAL, ADV. REVENUE BY SH. ARUN KUMAR YADAV, SR. DR ORDER PER SHRI K.N. CHARY, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE CHALLENGING THE O RDER DATED 31.08.2015 IN APPEAL NO. 170/2014-15/GZB PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD (HE REINAFTER FOR SHORT CALLED AS THE LD. CIT (A)). 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM MANUFACTURING AND SALE OF BRICKS. FOR THE AY 2010-11 HE FILED THE RETURN OF INCOME ON 09.09.2010 DECLARING A TOTAL INCOME OF RS. DATE OF HEARING 19.09.2017 DATE OF PRONOUNCEMENT 09.10.2017 2 ITA NO. 60 63 /DEL/2015 2,87,080/-. DURING ASSESSMENT U/S 143(3) OF THE IN COME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) AO MADE AN ADDITI ON OF RS. 62,39,059/- AND RS. 3,90,000/-. AO ALSO INITIATED PROCEEDINGS U/S 271(1)(C) OF THE ACT BY ISSUING A NOTICE U/S 274 READ WITH SECTION 271 O F THE ACT ON 26.03.2013, AND CONCLUDED THE SAME WITH LEVY OF PEN ALTY OF RS. 19,04,700/- IN RESPECT OF THE CONCEALED INCOME OF R S. 62,39,059/-. THE SAID ADDITION WAS CONFIRMED BY THE LD. CIT (A) BY W AY OF IMPUGNED ORDER. HENCE, THE ASSESSEE IS BEFORE US IN THIS APPEAL ON THE FOLLOWING GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY OF RS. 19,04,700/- AND THAT TOO WIT HOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD.CIT (A) IN CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY U/S 271(1)(C) IS BAD IN LAW AND AGAISNT THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE ASSESSEE CRAVES THE LEAVE TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. AT THE OUTSET IT IS BROUGHT TO OUR NOTICE BY THE LD. AR THAT THE QUANTUM ADDITION MADE BY THE AO BY WAY OF ORDER DAT ED 26.03.2013 WAS THE SUBJECT MATTER IN ITA NO. 3032/DEL/2014 BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL AND BY WAY OF ORDER DATED 20.03.20 17 VIDE PARAGRAPH NO. 3.9.12 THIS TRIBUNAL REMANDED SUCH AN ISSUE, TO THE FILE OF THE ASSESSING OFFICER TO COMPUTE THE CAPITAL GAINS IN TERMS OF SE CTION 45(2) OF THE ACT AND BUSINESS INCOME FROM THE TRANSACTION, WITH REFE RENCE TO THE FAIR 3 ITA NO. 60 63 /DEL/2015 MARKET VALUE OF THE LAND AND AFTER HEARING THE PART IES. A COPY OF THE ORDER IS PRODUCED BEFORE US AND ON A PERUSAL OF THE SAME, WE ARE SATISFIED THAT THE QUANTUM ADDITION NO LONGER EXIST, AS SUCH, THE PENALTY DOES NOT SURVIVE ON SUCH NON EXISTENT QUANTUM ADDITION. HOW EVER, SINCE WE ARE UNABLE TO ADDRESS THE ISSUE AS TO WHETHER THERE IS ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS, WE DEEM IT FIT TO SET ASIDE THE ISSUE TO THE FILE OF AO WITHA DIRECTION TO RECO NSIDER THE SAME AFTER THE FRESH COMPUTATION OF INCOME IS MADE. WITH THIS VI EW OF THE MATTER, WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PU RPOSE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2017 SD/- SD/- (G.D. AGRAWAL) (K.N. CHARY) PRESIDENT JUDICIAL MEMBER DATED: 09.10.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY 4 ITA NO. 60 63 /DEL/2015 ASSISTANT REGISTRAR ITAT NEW DELHI