Smt. Anuradha Chaudhary, Ghaziabad V. ITO, Ghaziabad

ITA 6382/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3219 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 14-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH UPPAL
• Section: 143(3)

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 6382/DEL/2016 ASSESSMENT YEAR : 2012-13 ANURADHA CHAUDHARY VS. ITO B-24, RAMPURI, WARD-1(1), SURYA NAGAR, CGO, HAPUR CHUNGI GHAZIABAD GHAZIABAD PAN AEKPC0928D (APPELLANT) (RESPONDENT) DATE OF HEARING : 02/05/2017 DATE OF ORDER : 04/05/2017 APPELLANT BY : MANISH UPPAL, CA RESPONDENT BY : MS. BEDOBANI, SR. DR PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A) GHAZIABAD DATED 5.10.2016 FOR ASSESSMENT YEAR 2012-13, CHALLENGING THE PENALTY U/S 271(1)(C) OF I.T. ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSES SEE FILED RETURN OF INCOME DECLARING INCOME OF RS. 3,81,410/-. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASING AND SELLING OF RESIDENTIAL P LOTS. THE REGULAR ASSESSMENT U/S 143(3) OF THE I.T. ACT WAS COMPLETED ON 27.2.2015 ON AN INCOME OF RS. 13,16,600/-. THE ASSESSING OFFICER MADE ADDITION OF RS. 3,85,193/- ON ACCOUNT OF DISALLOWANCE OF INTERE ST. THE PERUSAL OF PROFIT AND LOSS ACCOUNT SHOWS THAT ASSESSEE HAS CLA IMED INTEREST ON ITA NO. 6382/DEL/2016 ANURADHA CHAUDHARY VS. ITO PAGE 2 OF 4 HOUSING LOAN AT RS. 9,25,965/- OUT OF WHICH INTERE ST OF RS. 7,90,386/- HAS BEEN CLAIMED ON THE PROPERTY NO. 118-SHAKTI KHA ND, INDIRAPURAM, CHAZIABAD WHICH IS OWNED BY THE ASSESSEE IN JOINT N AME SMT. DEEPIKA GARG. SINCE ASSESSEE HAS SHARE IN THE PROPERTY O NLY. THEREFORE INTEREST WAS TO BE ALLOWED IN THE HANDS OF THE ASSE SSEE. ASSESSING OFFICER THEREFORE DISALLOWED THE INTEREST OF RS. 3, 85,193/- AND ADDITION WAS ACCORDINGLY MADE. 2.1 FURTHER THE BALANCE SHEET OF THE ASSESSEE REV EALED THAT ASSESSEE HAS SHOWN UNSECURED LOAN OF RS. 46,15,240/- AS ON 3 1.3.2012. OUT OF THESE UNSECURED LOAN ACCOUNTS, CONFIRMATIONS OF MOS T OF THE UNSECURED LOAN ALONGWITH PARTICULARS WERE FURNISHED. HOWEVER THE ASSESSEE HAS FAILED TO FURNISH CONFIRMATION OF UNSECURED LOAN OF RS. 5 LACS SHOWN FROM FRIENDS / RELATIVES. THE ASSESSEE AGREED TO SURREND ER THIS AMOUNT TO AVOID FURTHER LITIGATION. ASSESSING OFFICER THEREFO RE ADDED 5 LACS. 2.2 ASSESSING OFFICER ON VERIFICATION OF BILLS AND VOUCHERS FOUND THAT BILLS AND VOUCHERS ARE UNVERIFIABLE IN NATURE. ASSE SSEE AGREED FOR ADHOC ADDITION OF RS. 50,000/- ON ACCOUNT OF UNVERIFIABLE EXPENSES. RS. 50,000/- WAS ADDED. 3. THE ASSESSING OFFICER ON THESE ADDITIONS INITIAT ED THE PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE I.T. ACT FOR CON CEALING THE PARTICULARS OF INCOME. LD. CIT(A) CONFIRMED THE PENALTY ORDER A ND DISMISSED THE APPEAL OF ASSESSEE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED T HE MATERIAL ON RECORD. ITA NO. 6382/DEL/2016 ANURADHA CHAUDHARY VS. ITO PAGE 3 OF 4 5. LD. COUNSEL FOR ASSESSEE CONTENDED THAT ASSE SSEE HAS AGREED FOR ADDITION TO AVOID LITIGATION AND THEREFORE PENALTY NEED NOT TO BE LEVIED. THE CONTENTION OF LD. COUNSEL FOR ASSESSEE HAS NO M ERIT. THE ASSESSING OFFICER HAS TAKEN UP THE SCRUTINY ASSESSMENT AND IS SUED VARIOUS QUERIES TO THE ASSESSEE. THE ASSESSING OFFICER AFTER EXAMIN ING THE DETAILS BY ISSUING SHOW CAUSE NOTICE TO THE ASSESSEE FOUND TH AT ASSESSEE HAS EXCESSIVELY CLAIMED DEDUCTION OF INTEREST IN RESPE CT OF THE PROPERTY FOR WHICH HE WAS NOT OWNER. FURTHER ASSESSEE CLAIMED CA SH CREDIT OF RS. 5 LACS, HOWEVER NO CONFIRMATION OR ANY DETAILS HAVE B EEN FURNISHED. THEREFORE THE ASSESSING OFFICER DETECTED ALL THESE ITEMS AT THE ASSESSMENT STAGE AFTER SCRUTINY. THEREFORE EVEN IF ASSESSEE SURRENDERED THESE AMOUNTS FOR ADDITION, ASSESSEE WOULD NOT BE A BSOLVE FROM EXPLAINING THE ADDITION EVEN AT THE PENALTY STAGE. HAD THE SCRUTINY PROCEEDINGS WOULD NOT HAVE BEEN TAKEN UP, THE ASSES SEE WOULD NOT HAVE AGREED FOR THESE ADDITIONS. HON'BLE SUPREME CO URT IN THE CASE OF MAK DATA PVT. LTD. 358 ITR 593 HELD THAT THERE IS N O CONCEPT OF VOLUNTARY SURRENDER, THE PENALTY SHALL HAVE TO BE L EVIED. MERELY BECAUSE ASSESSEE AGREED FOR ADDITION IS NO GROUND TO CANCEL THE PENALTY IN THE MATTER. THE ASSESSEE HAS FAILED TO EXPLAIN BOTH THE ABOVE ITEMS OF ADDITIONS OF RS. 3,85,193/- ON ACCOUNT OF DISALLOWA NCE OF INTEREST AND CASH CREDIT OF RS. 5 LACS. THE ASSESSEE THEREFORE I S LIABLE FOR LEVY OF THE PENALTY. I THEREFORE CONFIRM THE LEVY OF PENALTY ON BOTH THESE ADDITIONS AND DISMISS THE APPEAL OF THE ASSESSEE. ITA NO. 6382/DEL/2016 ANURADHA CHAUDHARY VS. ITO PAGE 4 OF 4 6. HOWEVER AS REGARDS DISALLOWANCE OF RS. 50,000/- ON ACCOUNT OF UNVERIFIABLE EXPENSES, ASSESSING OFFICER HAS NOT PO INTED OUT AS TO WHICH BILLS AND VOUCHERS ARE NOT VERIFIABLE. THE ASSESSEE AGREED FOR ADHOC ADDITION, THEREFORE IT WOULD NOT MAKE OUT A CASE OF CONCEALMENT OF PARTICULARS OF INCOME. THE ORDERS OF AUTHORITIES BE LOW TO THAT EXTENT ARE SET ASIDE AND PENALTY IS CANCELED ON ADDITION OF RS . 50,000/- 7. ASSESSING OFFICER IS DIRECTED TO RECALCULA TE THE PENALTY IN VIEW OF THE ABOVE FINDINGS. IN THE RESULT APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT. SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 04/05/ 2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR