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ITA 6233/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6157 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 06-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRTI SANKRATYAYAN SENIOR
• Keywords: Income from undisclosed sources; Set aside
• Section: 271(1)(c); 143(3); 153C; 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.6233/DEL./2017 (ASSESSMENT YEAR : 2009-10) ACIT, CENTRAL CIRCLE 18, VS. M/S. VICTORY APARTMEN TS PVT. LTD., NEW DELHI. 208, GUPTA TOWER, AZADPUR COMMERCIAL COMPLEX, DELHI 110 033. (PAN : AACCV2794F) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. KIRTI SANKRATYAYAN, SENIOR DR DATE OF HEARING : 06.09.2021 DATE OF ORDER : 14.09.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ACIT, CENTRAL CIRCLE 18(1), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 24.07.2017 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-27, NEW DELHI QUA THE ASSESSMENT YEAR 2009-10 CONFIRMING THE PENALTY LEVI ED UNDER ITA NO.6233/DEL./2017 2 SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ON THE GROUNDS INTER ALIA THAT:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.1,06 ,72,860/- ON THE GROUND THAT THE ADDITIONS MADE BY THE A.O. HAVE ALR EADY BEEN DELETED BY THE HONBLE ITAT IN QUANTUM APPEAL, WITH OUT APPRECIATING THE FACT THAT THE DEPARTMENT HAS CHALL ENGED THAT ORDER BEFORE THE HONBLE HIGH COURT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.1,06 ,72,860/- WITHOUT APPRECIATING THE FACT THAT IN VIEW OF THE D EPARTMENTS APPEAL BEFORE THE HIGH COURT, THE ORDER OF THE HON BLE ITAT HAS YET NOT ATTAINED FINALITY. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT MA KING ADDITION OF RS.3,14,00,000/- AS UNACCOUNTED INCOME U/S 68 OF THE ACT, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE TH AT IN ORDER TO INITIATE THE PROCEEDINGS U/S 153C, THE AO HAS FAILE D TO FULFILL THE NECESSARY CONDITIONS LAID DOWN UNDER THE ACT AND AS SUCH, VERY INITIATION OF PROCEEDINGS U/S 153C OF THE ACT ARE N OT PROPER AND AS SUCH BAD IN LAW, AO PROCEEDED TO LEVY THE PENALTY T O THE TUNE OF RS.1,06,72,860/- @ 100% OF THE TAX SOUGHT TO BE EVA DED. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING APPEAL WHO HAS DELETED THE PENALTY BY ALLOWI NG THE APPEAL. ITA NO.6233/DEL./2017 3 FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE/APPELLANT TO THE APPEAL, GONE THROUGH THE D OCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHOR ITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CAS E. 6. LD. DR FOR THE REVENUE RELIED UPON THE ORDER PAS SED BY THE AO, BUT FAILED TO REBUT THE FINDINGS RETURNED BY TH E LD. CIT(A) THAT WHEN QUANTUM HAS BEEN DELETED NO PENALTY IS SUSTAIN ABLE U/S 271(1)(C) OF THE ACT. 7. UNDISPUTEDLY, COORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DT. 24.03.2017 IN ITA NO.6233/DEL/2014 FOR AY 2009-10 DELETED THE ADDITION MADE BY THE AO BY QUASHING THE ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT. IT IS ALSO NO T IN DISPUTE THAT THE ORDER DATED 24.03.2017 (SUPRA) PASSED BY THE TRIBUNAL HAS BEEN ACCEPTED BY THE REVENUE. 8. IN THE LIGHT OF THE AFORESAID UNDISPUTED FACTS, LD. CIT (A) DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE GROUND ITA NO.6233/DEL./2017 4 THAT WHEN ADDITION HAS BEEN DELETED PENALTY CANNOT BE LEVIED. SO WE FIND NO ILLEGALITY OR INFIRMITY IN THE FINDINGS RETURNED BY THE LD. CIT(A) AS THE COORDINATE BENCH OF THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE AO BY QUASHING THE PROCEEDINGS U/S 153C, PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS NOT SUST AINABLE BEING CONSEQUENTIAL IN NATURE, HENCE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 14 TH DAY OF SEPTEMBER, 2021. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 14 TH DAY OF SEPTEMBER, 2021 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-27, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.