Green Tourist Services P.Ltd, New Delhi V. ACIT, Circle-10(2), New Delhi

ITA 6282/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3170 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 25-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH; ASSESSEE THEREFORE
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 274; 73; 20

Judgement Text

GREEN TOURIST SERVICES P. LTD. VS. ACIT/ I.T.A.NO.6 282/DEL/2019/A.Y.2015-16 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . . /. I.T.A NO.6282/DEL/2019 / ASSESSMENT YEAR:2015-16 GREEN TOURIST SERVICES P. LTD. C/O RAJ KUMAR & ASSOCIATES CA L-7A (LGF), SOUTH EXTN., PART III, DELHI. VS. ACIT CIRCLE 10(2) NEW DELHI. PAN NO. AAACG2348C APPELLANT / RESPONDENT /ASSESSEE BY SH. RAJ KUMAR GUPTA, CA SH. SUMIT GOYAL, CA /REVENUE BY MS. PARUL SINGH, SR. DR / DATE OF HEARING: 1 7.11 .20 20 /PRONOUNCEMENT ON 1 8 .11 .20 20 /O R D E R PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-4, NEW DELHI DATED 21/05/2019 FOR A.Y. 2015-16, CHALLENGING THE LEVY OF PENALTY U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE RETUR N OF INCOME DECLARING LOSS OF RS. 76,67,319/- WAS FILED. THE A O COMPLETED THE ASSESSMENT U/S 143(3) VIDE ORDER DATED 12.12.2017 A T LOSS OF RS. 46,03,595/-. THE AO WHILE FINALIZING THE ASSESSMEN T INITIATING THE PENALTY PROCEEDINGS ON THREE ADDITIONS I.E. DISALLO WANCE OF INTEREST U/S 36(1)(III) RS. 9,39,163/-, ADDITION IN RESPECT OF S HORT TERM CAPITAL GAIN RS. 13,37,998/- AND DISALLOWANCE OF BROKERAGE ON SALE O F FLAT RS. 1,57,790/-. GREEN TOURIST SERVICES P. LTD. VS. ACIT/ I.T.A.NO.6 282/DEL/2019/A.Y.2015-16 2 THE AO VIDE SEPARATE ORDER LEVIED THE PENALTY U/S 2 71(1)(C) OF THE ACT WHICH IS CONFIRMED BY THE LD. CIT(A). 3. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES THROUGH VIDEO CONFERENCING AND PERUSED THE MATERIAL ON RECO RD. 4. LD. COUNSEL FOR ASSESSEE REFERRED TO THE NOTICE U/S 274 READ WITH 271 OF THE ACT DATED 12.12.2017 WHICH WAS ISSUED BE FORE LEVY OF THE PENALTY IN WHICH AO HAS MENTIONED HAVE CONCEALED T HE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION 1, 2, 3, 4 AND 5. LD. COUNSEL FOR ASSESSEE THEREFORE SUBMITTED THAT SINCE NOTICES BAD IN LAW AS IT DID N OT SPECIFY IN WHICH LIMB OF SECTION 271(1)(C) OF THE ACT PENALTY HAS BEEN IN ITIATED, THEREFORE, ISSUE IS COVERED BY JUDGMENT OF DELHI HIGH COURT IN THE CASE OF M/S SAHARA INDIA LIFE INSURANCE COMPANY LIMITED DATED 2 ND AUGUST, 2019. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF TH E AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HA VE SEEN THE CONTENTS OF THE SHOW-CAUSE NOTICE DATED 12.12.2017 REPRODUCED ABOVE IN WHICH AO HAS NOT SPECIFICALLY MENTIONED AS TO FOR W HICH LIMB OF SECTION 271(1)(C) OF THE ACT PENALTY HAS BEEN INITIATED I.E . WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR INACCURATE PARTICULARS OF INCOME. THE NOTICE IS, THEREFORE, BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY P ROCEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULA RS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE CASE OF CIT VS. M/S SSAS EMERALD MEADOWS 73 TAXMAN.COM 241, HONBLE KA RNATAKA HIGH COURT IN THE SAME CIRCUMSTANCES CONFIRM THE ORDER O F THE TRIBUNAL, WHEREBY PENALTY WAS CANCELLED. DEPARTMENTAL APPEAL WAS DISMISSED. THE JUDGMENT OF THE HIGH COURT IS CONFIRMED BY THE SUPREME COURT BY DISMISSING THE SLP OF THE REVENUE DEPARTMENT REPORT ED IN 73 TAXMAN.COM 248. HONBLE DELHI HIGH COURT IN THE CA SE OF PR. CIT VS. M/S GREEN TOURIST SERVICES P. LTD. VS. ACIT/ I.T.A.NO.6 282/DEL/2019/A.Y.2015-16 3 SAHARA INDIA LIFE INSURANCE COMPANY LIMITED (2019) (8TMI 409) FOLLOWING THE ABOVE JUDGMENT DISMISSED THE DEPARTMENTAL APPEA L. 6. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW SINCE S HOW CAUSE NOTICE ISSUED BEFORE LEVY OF PENALTY IS BAD IN LAW AND, AS SUCH, IT WOULD VITIATE THE ENTIRE PENALTY PROCEEDINGS. THUS, NO PENALTY C OULD BE LEVIED AGAINST THE ASSESSEE. IN VIEW OF THE ABOVE, WE SET ASIDE T HE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANIL CHATURVEDI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH NOVEMBER, 2020 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI