Sh. Sagar Dikshit, Noida V. ITO, Noida

ITA 6412/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4867 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 16-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: VINEET GUPTA SHRI S C GUPTA; YOGESH GUPTA CAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NOS.6412 & 6413/DEL/2016 ASSESSMENT YEAR : 2012-13 SAGAR DIKSHIT, C/O YOGESH KUMAR GUPTA, S-4, SHREE JEE COMPLEX, SHARMA MARKET, HAROLA, SECTOR-5, NOIDA. PAN: AEPPD9504D ] VS. ITO, WARD-3(3), NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINEET GUPTA, SHRI S.C. GUPTA, & SHRI YOGESH GUPTA, CAS DEPARTMENT BY : SHRI T. VASANTHAN, SR. DR DATE OF HEARING : 30.08.2017 DATE OF PRONOUNCEMENT : 30.08.2017 ORDER THESE TWO APPEALS BY THE ASSESSEE ONE AGAINST TH E QUANTUM ASSESSMENT AND THE OTHER AGAINST THE PENALTY IMPOSE D BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) ITA NO.6412 & 6413/DEL/2016 2 ACT RELATE TO THE ASSESSMENT YEAR 2012-13. SINCE BO TH THE APPEALS ARE BASED ON COMMON FACTS, I AM PROCEEDING TO DISPOSE T HEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY ISSUE RAISED IN THE QUANTUM APPEAL IS A GAINST THE CONFIRMATION OF ADDITION OF RS.22,49,000/-, BEING THE DEDUCTION FOR COMMISSION BY THE ASSESSEE. THE ASSESSEE CLAIMED T O HAVE PAID COMMISSION OF RS.22.49 LAC TO VARIOUS PERSONS THROU GH WHOM SUPPLY OF MEDICAL EQUIPMENTS WERE MADE. THE ASSESSING OFFICER OPINED THAT NO COMMISSION WAS, IN FACT, PAID. THE ASSESSEE ARGUED BEFORE THE LD. CIT(A) THAT HE WAS HAVING SUFFICIENT EVIDENCE FOR P AYMENT OF COMMISSION WHICH COULD NOT BE ADDUCED BEFORE THE AS SESSING OFFICER. IN THE ABSENCE OF ANY POSITIVE EVIDENCE PLACED BEFO RE THE LD. CIT(A), THE ADDITION SO MADE WAS UPHELD. THE ASSESSEE IS IN AP PEAL AGAINST THE CONFIRMATION OF ADDITION ON THE GROUND THAT NO ADEQ UATE OPPORTUNITY WAS GIVEN BY THE LD. CIT(A) FOR PLACING THE EVIDENCE. 3. IT WAS SUBMITTED THAT THOUGH PAYMENT OF COMM ISSION WAS GENUINELY MADE, BUT THE LD. AR CANDIDLY ADMITTED THAT THE EVI DENCE IN ITS SUPPORT ITA NO.6412 & 6413/DEL/2016 3 COULD NOT BE PLACED BEFORE THE ASSESSING OFFICER. A REQUEST WAS MADE FOR ALLOWING ONE MORE OPPORTUNITY TO THE ASSESSEE T O BRING ON RECORD THE NECESSARY EVIDENCE. IT WAS, THEREFORE, REQUESTED TH AT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER INSTEAD OF THE L D. CIT(A) FOR APPRECIATION OF THE RELEVANT EVIDENCE. 4. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, I AM SATISFIED THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IM PUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. I ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISS UE AFRESH AS PER LAW, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 5. THE OTHER APPEAL IS AGAINST THE CONFIRMATION OF PENALTY OF RS.10,50,000/- U/S 271(1)(C) PURSUANT TO THE ADDIT ION OF RS.22.49 LAC ON ACCOUNT OF COMMISSION. SINCE THE ISSUE IN QUANTUM HAS BEEN RESTORED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION, THE P ENALTY IS ALSO RESTORED ACCORDINGLY. MY VIEW IN RESTORING THE PENALTY TO TH E AO IS FORTIFIED BY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CA SE OF MOHD. MOHATRAM FAROOQUI VS. CIT (SC) 2010-TIOL-23-SC-IT IN WHICH IT HAS ITA NO.6412 & 6413/DEL/2016 4 BEEN HELD THAT IF ADDITION IS RESTORED TO THE AO, T HEN PENALTY SHOULD ALSO BE RESTORED. THE HONBLE JURISDICTIONAL HIGH COURT IN SANJAY GUPTA VS. CIT (2014) 366 ITR 18 (DEL) HAS ALSO HELD THAT WHERE THE QUANTUM HAS BEEN REMANDED TO THE AO, THE QUESTION OF PENALTY ON ACCOUNT OF THE SAID AMOUNT BEING TREATED AS UNDISCLOSED INCOME, SHOULD ALSO BE REMANDED TO THE AO. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF THE AO FOR DETERMINING THE QUESTION OF IMPOSITION OR OTHERWISE OF THE PENALTY ON THE ISSUE, AFTER THE PA SSING OF A FRESH ASSESSMENT ORDER ON THIS COUNT. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2017. SD/- [R.S. SYAL] VICE PRESIDENT DATED, 30 TH AUGUST, 2017. DK ITA NO.6412 & 6413/DEL/2016 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.