AVTAR MOHAN BAHAL, NEW DELHI V. ITO, WARD 72(3), NEW DELHI

ITA 6121/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3423 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES B : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.6121/DEL./2014 ASSESSMENT YEAR 2008-2009 DEVESH SWARUP AGARWAL (HUF), 107-B, VAKIL ROAD, NEW MANDI, MUZAFFARNAGAR. PAN AAFHD6529L VS. THE ACIT, CIRCLE-2, MUZAFFARNAGAR. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI ANKIT GUPTA, ADVOCATE FOR REVENUE : SHRI RAGHUNATH, SR. D.R. DATE OF HEARING : 21.11.2017 DATE OF PRONOUNCEMENT : 22.11.2017 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A), MUZAFFARNAGAR, DATED 27 TH AUGUST, 2014, FOR THE A.Y. 2008-2009, CHALLENGING THE LEVY OF PENALTY UND ER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.15,30,586 I NCLUDING AGRICULTURAL INCOME OF RS.7,02,460. THE A.O. AT THE ASSESSMENT STAGE ASKED THE ASSESSEE TO PROVIDE COPY OF THE KHASRA/KH ATAUNI AS PROOF 2 ITA.NO.6121/DEL./2014 DEVESH SWARUP AGARWAL (HUF), MUZAFFARNAGAR. OF THE OWNERSHIP ALONG WITH SALE BILLS/FORM-J ETC. AS PROOF OF SALE OF AGRICULTURAL PRODUCE ALONG WITH BILLS OF SEEDS/PEST ICIDES AND HIRING OF LABOUR ETC. SINCE THE ASSESSEE FAILED TO PRODUCE THE DOCUMENTS TO THE SATISFACTION OF THE A.O, THE A.O. DISALLOWED RS .3 LAKHS OUT OF AGRICULTURAL INCOME AND TREATED THE SAME AS INCOME FROM OTHER SOURCES. THE A.O. VIDE SEPARATE ORDER LEVIED PENALT Y UNDER SECTION 271(1)(C) OF THE I.T. ACT, ON THIS ADDITION. THE LD . CIT(A) DISMISSED THE APPEAL OF ASSESSEE. 3. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE ARE OF THE VIEW THAT PENALTY NEED NOT BE LEVIED IN THE FACTS AND CI RCUMSTANCES OF THE CASE. THE LEARNED COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT THOUGH THE ASSESSEE FILED APPEAL ON QUANTUM BEFORE LD. CIT(A) CHALLENGING THE ADDITION OF RS.3 LAKHS, BUT THE APP EAL WAS NOT PRESSED BEFORE LD. CIT(A). THEREFORE, THE SAME WAS DISMISSED AS NOT PRESSED. THE FACTS OF THE CASE SHOWS THAT THE A.O. HAS ACCEPTED THE SUBSTANTIAL AGRICULTURAL INCOME EARNED BY THE ASSES SEE DESPITE THE ASSESSEE FAILED TO PROVIDE THE DOCUMENTARY EVIDENCE IN RESPECT OF CLAIM OF AGRICULTURAL INCOME. THE ASSESSEE DISCLOSE D COMPLETE AGRICULTURAL INCOME AND A.O. HAS NOT POINTED OUT IN THE ASSESSMENT 3 ITA.NO.6121/DEL./2014 DEVESH SWARUP AGARWAL (HUF), MUZAFFARNAGAR. ORDER AS TO ON WHAT BASIS HE HAS DISALLOWED RS.3 LA KHS OUT OF AGRICULTURAL INCOME. THE A.O. HAS NOT POINTED OUT I N THE ASSESSMENT ORDER AS TO HOW THE ASSESSEE HAS CONCEALED THE PART ICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. NO DEFINITE FINDING OF CONCEALMENT OF INCOME HAVE BEEN GIVEN IN THE ORDER. IT IS, THEREFORE, AN ESTIMATED ADDITION BY DISALLOWING RS. 3 LAKHS OUT OF AGRICULTURAL INCOME. IT IS WELL SETTLED LAW THAT IF ADDITION IS MADE ON ESTIMATE BASIS, IT MAY NOT BE A CASE OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME. IT IS WELL SETTLED LAW THAT LEVY OF PENALTY IS NOT AUTOMATIC I N EACH AND EVERY CASE. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF TH E VIEW THAT PENALTY NEED NOT BE LEVIED IN THIS CASE. WE, ACCORDINGLY, S ET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 22 ND NOVEMBER, 2017 VBP/- 4 ITA.NO.6121/DEL./2014 DEVESH SWARUP AGARWAL (HUF), MUZAFFARNAGAR. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT B BENCH, DELHI 6. GUARD FILE. //BY ORDER // ASST. REGISTRAR, ITAT, DELHI BENCHES DELHI.