Kaveri Infrastructure (P) Ltd, New Delhi V. DCIT, New Delhi

ITA 641/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5474 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY VERMA
• Keywords: Difference of opinion; Change of opinion
• Section: 37(1); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE MR. J.S. REDDY , ACCOUNTANT MEMBER AND MR. KUL BHARAT , JUDICIAL MEMBER ITA N O. 641 /DEL/201 5 A SSESSMENT YEAR: 20 0 5 - 06 M/S KAVERI INFRASTRUCTURE PVT. LTD. B - 14, KAVERI HOUSE, GEETAN JALI ENCLAVE, NEW DELHI VS. DCIT CC - 6 NEW DELHI PAN: AABCK7148K (APPELLANT) (RESPONDENT) ITA N O. 642 /DEL/201 5 A SSESSMENT YEAR: 20 06 - 07 M/S KAVERI INFRASTRUCTURE PVT. LTD. B - 14, KAVERI HOUSE, GEETANJALI ENCLAVE, NEW DELHI VS. DCI T CC - 6 NEW DELHI PAN: AABCK7148K (APPELLANT) (RESPONDENT) ITA N O. 643 /DEL/201 5 A SSESSMENT YEAR: 20 07 - 08 M/S KAVERI INFRASTRUCTURE PVT. LTD. B - 14, KAVERI HOUSE, GEETANJALI ENCLAVE, NEW DELHI VS. DCIT CC - 6 NEW DELHI PAN: AABCK7148K (APPELLANT) (RESPONDENT) ASSESSEE BY SH. R.S. SINGHVI & SH. SATYAJEET GOEL, CA RESPONDENT BY SH. VIJAY VERMA, CIT DR DATE OF HEARING 04 .0 4 .2018 DATE OF PRONOUNCEMENT 04 .04 .2018 2 ITA NO S . 641 / DEL/201 5, 642/DEL/2015 & 643/DEL/2015 O R D E R PER KUL BHARAT, JUDICIAL MEMBER . : THESE THREE A PPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 24 PERTAINING TO THE ASSESSMENT YEAR S 2005 - 0 6 , 2006 - 07 AND 2007 - 08 . 2. SINCE THE SIMILAR GROUNDS WERE RAISED IN ALL T HESE APPEALS. ALL THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED ORDER. 3. FIRST OF ALL, WE TAKE UP THE ASSESSEE S OWN APPEAL IN ITA NO. 641 PERTAINING TO AY 2005 - 06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL: - (1) I. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING PENALTY OF RS. 3,11,87,961/ - ON THE ALLEGED GROUND OF CONCEALMENT/FURNISHING OF INACCURATE PARTICULARS OF INCOME. II. THAT VARIOUS ADDITIONS AND DIS ALLOWANCES BEING SUBJECT MATTER OF DISPUTE ARE BASED ON CHANGE OF OPINION AND ARE ALSO NOT IN CONFORMITY WITH PROVISIONS OF SECTION 1 53A OF THE INCOME TAX ACT, 1961 . III. THAT THE PENALTY HAS BEEN IMPOSED WITHOUT RECORDING PROPER SATISFACTION AND APPLICAT ION OF MIND. 2. THAT EVEN OTHERWISE, MERE ADDITION OR DISALLOWANCE COULD NOT BE THE BASIS FOR CONCEALMENT AS ALL THE PARTICULARS RELATING TO THE ADDITIONS AND DISALLOWANCES WERE PART OF RECORD AND AS SUCH THERE IS NO CASE OF CONCEALMENT / FURNISHING OF IN ACCURATE PARTICULARS OF INCOME. 3. THAT THE PENALTY ORDER IS NOT JUSTIFIED ON FACTS AND SAME IS BAD IN LAW. 4. THAT APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND DELETE ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. AT THE OUTSET, L EARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY AS LEVIED CANNOT BE SUSTAINED IN VIEW OF THE FACT THAT IN QUANTUM 3 ITA NO S . 641 / DEL/201 5, 642/DEL/2015 & 643/DEL/2015 PROCEEDINGS, THE TRIBUNAL HAS DELETED THE ADDITION IN ITA NO. 881/DEL/2012. THIS FACT IS NOT CONTROVERTED BY THE LEARNED DR. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE AO HAS IMPOSED PENALTY IN RESPECT OF THE VARIOUS DISALLOWANCES I.E. DISALLOWANCE ON ACCOUNT OF REJECTION OF CLAIM OF DEDUCTION U/S 80IA . THE TRANSACTIONS CARRIED OUT BY SHRI. V.K. KA TARIA CASH RECEIVED FROM D.D. AND MR. VIJAY. THE PAYMENTS MADE TO THE DELHI JAL BOARD OFFICIALS AND EXPENDITURE RELATED TO PROJECT CONSULTANCY AND TECHNICAL SUPPORT. THE ASSESSEE HAS FURNISHED T HE CHART WHICH IS REPRODUCED AS BELOW: - S. N O. GROUND PENALTY ORDER CIT(A) ORDER (PENALTY) ITAT ORDER (QUANTUM) REMARKS 1. DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IA PAGE 1, PARAL FINDING: PAGE 28, PARA 4.1 CONCLUSION: PAGE 33, PARA 4.3 PAGE 36, PARA 60 CONCLUSION PAGE 29, PARA 50 CLAIM OF DEDUCTION U/S 80IA ACCEPT ED 2. ADDITION OF UNEXPLAINED CASH TRANSACTIONS(RS. 33,42,000/ - ) PAGE 1, PARA2 FINDING: PAGE 35, PARA 4.9 CONCLUSION: PAGE 35, PARA 4.9 PAGE 36, PARA 61 CONCLUSION PAGE 38, PARA 64 ISSUE RESTORED BACK TO THE FILE OF AO 3. ADDITION OF UNEXPLAINED CASH TRA NSACTIONS(RS. 11,71,000/ - ) PAGE 1, PARA3 FINDING: PAGE 35, PARA 4.9 CONCLUSION: PAGE 35, PARA 4.9 PAGE 36, PARA 61 CONCLUSION PAGE 38, PARA 64 ISSUE RESTORED BACK TO THE FILE OF AO 4. DISALLOWANCE OF SITE EXPENSES U/ S 37(1) PAGE 1, PARA4 FINDING: PAGE 35 , PARA 4.9 CONCLUSION: PAGE 35, PARA 4.9 PAGE 36, PARA 60 CONCLUSION PAGE 22, PARA 39 DISALLOWANCE DELETED 5. DISALLOWANCE OF PROJECT CONSULTANCY AND TECHNICAL SUPPORT EXPENSES PAGE 1, PARA5 FINDING: PAGE 33, PARA 4.5 CONCLUSION: PAGE 35, PARA 4.7 PAGE 36 , PARA 60 CONCLUSION PAGE 22, PARA 38 DISALLOWANCE DELETED 6. ADHOC DISALLOWANCE OF SITE LABOUR EXPENSES PAGE 2, PARA 6 FINDING: PAGE 35, PARA 4.8 CONCLUSION: PAGE 35, PARA 4.8 PAGE 36, PARA 60 CONCLUSION PAGE 13, PARA 21 &22 DISALLOWANCE DELETED 6. SIN CE THE ADDITIONS HAVE BEEN DELETED OR RESTORED TO THE FILE OF THE AO. THE REVENUE HAS NOT REBUTTED THE FACTS STATED IN THE CHART. MOREOVER, THE LD. COUNSEL FOR THE ASSESSEE HAS TAKEN US THROUGH THE DECISION OF THE TRIBUNAL IN 4 ITA NO S . 641 / DEL/201 5, 642/DEL/2015 & 643/DEL/2015 ITA NO. 881/DEL/2012. UNDER TH ESE FACTS , THE PENALTY LEVIED ON THESE AMOUNT AMOUNTS WOULD NOT BE SUSTAINED. THEREFORE, WE DIRECT THE AO TO DELETE THE PENALTY. 7. NOW, WE TAKE UP ITA NO. 642/DEL/2015. FACTS ARE IDENTICAL AS IN ITA NO. 641/DEL/2015 . THE ASSESSEE HAS ALSO FURNISHED THE C HART FOR AY 2006 - 07 WHICH IS AS UNDER: - S. NO. GROUND PENALTY ORDER CIT(A) ORDER (PENALTY) ITAT ORDER (QUANTUM) REMARKS 1. DISALLOWANCE OF PROJECT CONSULTANCY EXPENSES PAGE 1, PARA 2 FINDING : PAGE 23, PARA 4.3 CONCLUSION: PAGE 26, PARA 4.4 PAGE : 45 PARA : 74 CONCLUSION : PAGE 46 PARA 77 DISALLOWANCE DELETED 2. DISALLOWANCE OF PROJECT CONSULTANCY AND TECHNICAL SUPPORT EXPENSES PAGE 1, PARA 3 FINDING: PAGE 23 , PARA 4. 3 CONCLUSION: PAGE 26 , PARA 4. 4 PAGE 45, PARA 74 CONCLUSION PAGE 4 8, PARA 81 DISALLOWANC E DELETED 3. DIS ALLOWANCE OF SITE EXPENSES U/S 37(1) PAGE 1, PAGE 4 FINDING : PAGE 26, PARA 4.5 CONCLUSION : PAGE 28, PARA 4.6 PAGE 51, PARA 87 CONCLUSION PAGE 51, PARA 88 DISALLOWANCE DELETED 4. ADHOC DISALLOWANCE OF SITE LABOUR EXPENSES PAGE 1, PARA 5 FINDING: PAGE 28 , PARA 4 .7 CONCLUSION: PAGE 29 , PARA 4. 8 PAGE 49, PARA 83 CONCLUSION PAGE 50, PARA 86 DISALLOWANCE DELETED 8. SINCE THE ADDITIONS HAVE BEEN DELETED OR RESTORED TO THE FILE OF THE AO. THE REVENUE HAS NOT REBUTTED THE FACTS STATED IN TH E CHART. MOREOVER, THE LD. COUNSEL FOR THE ASSESSEE HAS TAKEN US THROUGH THE DECISION OF THE TRIBUNAL IN ITA NO. 88 2 /DEL/2012. UNDER THESE FACTS, THE PENALTY LEVIED ON THESE AMOUNT AMOUNTS WOULD NOT BE SUSTAINED. THEREFORE, WE DIRECT THE AO TO DELETE THE P ENALTY. 9 . NOW, WE TAKE UP ITA NO. 64 3 /DEL/2015. FACTS ARE IDENTICAL AS IN THE ABOVE TWO APPEALS . THE ASSESSEE HAS ALSO FURNISHED THE CHART FOR AY 2007 - 0 8 WHICH IS AS UNDER: - 5 ITA NO S . 641 / DEL/201 5, 642/DEL/2015 & 643/DEL/2015 S. NO. GROUND PENALTY ORDER CIT(A) ORDER (PENALTY) ITAT ORDER (QUANTUM) REMARKS 1. DISALLOWANCE OF SITE EXPENSES U/S 37(1) PAGE 1, PARA 2 F INDING : PAGE 22 , PARA 4. 1 CONCLUSION: PAGE 22 , PARA 4 .2 PAGE 55, PARA 92 DISALLOWANCE DELETED 2. DISALLOWANCE OF PROJECT CONSULTANCY AND TECHNICAL SUPPORT EXPENSES PAGE 1, PARA 3 FINDING: PAGE 2 2 , PARA 4. 1 CONCLUSION: PAGE 2 2 , PARA 4. 2 PAGE 55, PARA 92 DISALLOWANCE DELETED 3. ADHOC DISALLOWANCE OF SITE LABOUR EXPENSES PAGE 1, PAGE 4 F INDING : PAGE 22, PARA 4.1 CONCLUSION : PAGE 2 2 , PARA 4. 2 PAGE 55, PARA 92 DISALLOWANCE DELETED 10. SINCE THE ADDITIONS HAVE BEEN DELETED OR RESTORED TO THE FILE OF THE AO. THE REVENUE HAS NOT REBUTTED THE FACTS STATED IN THE CHART. MOREOVER, THE LD. COUNSEL FOR THE ASSESSEE HAS TAKEN US THROUGH THE DECISION OF THE TRIBUNAL IN ITA N O. 883 /DEL/2012. UNDER THESE FA CTS, THE PENALTY LEVIED ON THESE AMOUNT AMOUNTS WOULD NOT BE SUSTAINED. THEREFORE, WE DIRECT THE AO TO DELETE THE PENALTY. 11 . IN THE RESULT, APPEAL S OF THE ASSESSEE IN ITA NOS. 641/DEL/2015, 642/DEL/2015 & 643/DEL/2015 ARE ALLOWED . PRONOUNCED ON 4 TH DAY OF APRIL, 2018 . SD/ - SD/ - ( J.S. REDDY ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 04 . 0 4 .2018 SH 6 ITA NO S . 641 / DEL/201 5, 642/DEL/2015 & 643/DEL/2015 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR , ITAT NEW DELHI DATE 1. D RAFT DICTATED ON PS 2. DRAFT PLACED BEFORE AUTHOR . 4 . 201 8 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS . 4 . 201 8 PS/PS 6. KEP T FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK . 4 .201 8 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.