Krishan Lal Madhok, Delhi V. ACIT, Central Circle- 15, New Delhi

ITA 6422/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6438 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 05-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROCKTIM SAIKIA
• Assessee Lawyers: PRIYANSHU GOEL
• Keywords: Depreciation; Search and seizure; Peak credit; Revised return
• Section: 271(1)(c); 153A; 13; 153; 153C; 147; 69; 6; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI (THROUGH VIDEO CONFERENCING] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NO. 6422/DEL/2018 [A.Y 2007-08] SHRI KRISHAN LAL MADHOK VS. THE A.C.I.T. 672, TULSI FARMS, OPP. NANDA HOSPITAL CENTRAL CIR CLE 15 CHATTARPUR, NEW DELHI NEW DELHI PAN: AAKPM 8593 J [APPELLANT] [RESPONDENT] DATE OF HEARING : 06.09.2021 DATE OF PRONOUNCEMENT : 06.09.2021 ASSESSEE BY : SHRI PRIYANSHU GOEL, CA REVENUE BY : SHRI ROCKTIM SAIKIA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E COMMISSIONER OF INCOME TAX [APPEALS] - XXVI, NEW DE LHI DATED 24.08.2018 PERTAINING TO ASSESSMENT YEAR 2007-08. 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 75,53,556/- U/S 2 71(1)(C) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'T HE ACT' FOR SHORT]. 3. THE ROOTS FOR LEVY OF PENALTY LIE IN THE ASSESSM ENT ORDER FRAMED U/S 153A OF THE ACT. FACTS ON RECORD SHOW THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 2,31,20,540/- AND AFTER SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT AND AFTER RECEIVING NOTICE U/S 153A OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME U/S 153A OF THE ACT DECLARING INCOME AT RS. 4,54,88,542/-. 4. RETURNED INCOME WAS ASSESSED AT RS. 4,74,19,927/ - AFTER MAKING ADDITION ON ACCOUNT OF PEAK CREDIT BALANCE IN HSBC BANK OF RS. 18,58,311/- AND RS. 73,074/- ON ACCOUNT OF ACCRUED INTEREST. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE SEPARATEL Y INITIATED. 5. THE ASSESSING OFFICER IMPOSED PENALTY HOLDING TH AT INCOME OF RS. 2,23,68,002/- WAS NOT DECLARED IN THE ORIGINAL RETU RN OF INCOME FILED U/S 139 OF THE ACT. FURTHER, ADDITION MADE ON ACCO UNT OF HSBC DEPOSIT AND INTEREST THEREON WERE ALSO SUBJECTED TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 3 6. AFTER GIVING THOUGHTFUL CONSIDERATION TO THE AFO RESTATED FACTS, AT THE VERY OUTSET, WE ARE OF THE OPINION THAT ONCE IN COME IS RETURNED IN THE RETURN FILED U/S 153A OF THE ACT, THEN THE RETU RN FILED U/S 139 OF THE ACT GETS SUPERSEDED BY THE RETURN FILED U/S 153 A OF THE ACT, WHICH MEANS THAT ANY INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT SHOULD BE BASED ON THE ASSESSED INCOME U/S 153A OF THE ACT QU A THE RETURN FILED. IN OUR CONSIDERED OPINION, THE RETURNED INCOME U/S 139 OF THE ACT SHOULD NOT BE CONSIDERED IN INITIATING PENALTY PROC EEDINGS U/S 271(1)(C) OF THE ACT QUA THE ASSESSMENT MADE U/S 153A OF THE ACT. 7. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF N EERAJ JINDAL 79 TAXMANN.COM 96 HAD THE OCCASION TO ADDRESS AN IDENT ICAL ISSUE. THE RELEVANT FINDINGS OF THE HON'BLE JURISDICTIONAL HIG H COURT READ AS UNDER: 17. IN THIS CASE, THE A.O. IN HIS ORDER NOTED THAT THE DISCLOSURE OF HIGHER INCOME IN THE RETURN FILED BY THE ASSESSEE W AS A CONSEQUENCE OF THE SEARCH CONDUCTED AND HENCE, SUCH DISCLOSURE CANNOT BE SAID TO BE 'VOLUNTARY'. HENCE, IN THE A.O .'S OPINION, THE ASSESSEE HAD 'CONCEALED' HIS INCOME. HOWEVER, THE M ERE FACT THAT THE ASSESSEE HAS FILED REVISED RETURNS DISCLOSING H IGHER INCOME THAN IN THE ORIGINAL RETURN, IN THE ABSENCE OF ANY OTHER INCRIMINATING EVIDENCE, DOES NOT SHOW THAT THE ASSE SSEE HAS 'CONCEALED' HIS INCOME FOR THE RELEVANT ASSESSMENT YEARS. ON THIS 4 POINT, SEVERAL HIGH COURTS HAVE ALSO OPINED THAT TH E MERE INCREASE IN THE AMOUNT OF INCOME SHOWN IN THE REVISED RETURN IS NOT SUFFICIENT TO JUSTIFY A LEVY OF PENALTY. 18. THE PUNJAB & HARYANA HIGH COURT IN COMMISSIONER OF INCOME TAX V. SURAJ BHAN , (2007) 294 ITR 481 (P & H), HELD THAT WHEN AN ASSESSEE FILES A REVISED RETURN SHOWING HIGHER INCO ME, PENALTY CANNOT BE IMPOSED MERELY ON ACCOUNT OF SUCH HIGHER INCOME FILED IN THE REVISED RETURN. SIMILARLY, THE KARNATAKA HIGH C OURT IN THE CASE OF BHADRA ADVANCING PVT LIMITED V. ASSISTANT COMMISSIO NER OF INCOME TAX , (2008) 219 CTR 447, HELD THAT MERELY BECAUSE THE ASSESSEE HAS FILED A REVISED RETURN AND WITHDRAWN S OME CLAIM OF DEPRECIATION PENALTY IS NOT LEVIABLE. THE ADDITIONS IN ASSESSMENT PROCEEDINGS WILL NOT AUTOMATICALLY LEAD TO INFERENC E OF LEVYING PENALTY. THE CALCUTTA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V. SURESH CHAND BANSAL , (2010) 329 ITR 330 (CAL) HELD THAT WHERE THERE WAS AN OFFER OF ADDITIONAL INCOME IN THE REVISED RETURN FILED BY THE ASSESSEE AND SUCH OFFER IS IN C ONSEQUENCE OF A SEARCH ACTION, THEN IF THE ASSESSMENT ORDER ACCEPTS THE OFFER OF THE ASSESSEE, LEVY OF PENALTY ON SUCH OFFER IS NOT JUSTIFIED WITHOUT DETAILED DISCUSSION OF THE DOCUMENTS AND THEIR EXPL ANATION WHICH COMPELLED THE OFFER OF ADDITIONAL INCOME. THE MADRA S HIGH COURT IN THE CASE OF S.M.J. HOUSING V. COMMISSIONER OF INCOME TAX , (2013) 357 ITR 698 HELD THAT WHERE AFTER A SEARCH WAS COND UCTED, THE ASSESSEE FILED THE RETURN OF HIS INCOME AND THE DEP ARTMENT HAD ACCEPTED SUCH RETURN, THEN LEVY OF PENALTY UNDER SECTION 271(1)(C) WAS NOT JUSTIFIED. FROM THE ABOVE CASES IT WOULD B E CLEAR THAT WHEN AN ASSESSEE HAS FILED REVISED RETURNS AFT ER SEARCH HAS 5 BEEN CONDUCTED, AND SUCH REVISED RETURN HAS BEEN AC CEPTED BY THE A.O., THEN MERELY BY VIRTUE OF THE FACT THAT SUCH R ETURN SHOWED A HIGHER INCOME, PENALTY UNDER SECTION 271(1)(C) CANNOT BE AUTOMATICALLY IMPOSED. 19. THE WHOLE MATTER CAN BE EXAMINED FROM A DIFFERE NT PERSPECTIVE AS WELL. SECTION 153A PROVIDES THE PROCEDURE FOR COMPLETION OF ASSESSMENT WHERE A SEARCH IS INITIATE D UNDER SECTION 132 OR BOOKS OF ACCOUNT, OR OTHER DOCUMENTS OR ANY ASS ETS ARE REQUISITIONED UNDER SECTION 132A AFTER 31.05.2003. IN SUCH CASES, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PE RSON REQUIRING HIM TO FURNISH, WITHIN SUCH PERIOD AS MAY BE SPECIF IED IN THE NOTICE, RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUISITION WAS MADE UNDER SECTION 132A . THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX A SSESSMENT YEARS. ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UND ER SECTION 132 OR REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE. [REF TO MEMORANDUM ACCOMPANYING THE FINANCE BILL, 2003] SECTION 153A OPENS WITH A NON-OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE COVERED BY SECTIONS 139 , 147 , 148 , 149 , 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER MAY 31, 2003. THE SECTIONS, SO EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS. HOWEVER, TH E PROVISIONS THAT ARE SAVED ARE THOSE UNDER SECTION 153B AND 153C , SO THAT 6 THESE THREE SECTIONS 153A , 153B AND 153C ARE INTENDED TO BE A COMPLETE CODE FOR POST- SEARCH ASSESSMENTS. CONSIDE RING THAT THE NON-OBSTANTE CLAUSE UNDER SECTION 153A EXCLUDES THE APPLICATION OF, INTER ALIA, SECTION 139 , IT IS CLEAR THAT THE ITA 463/2016 & CONNECTED CASES PAGE 13 REVISED RETURN FILED UNDER SECTION 153A TAKES THE PLACE OF THE ORIGINAL RETURN UNDER SECTION 139 , FOR THE PURPOSES OF ALL OTHER PROVISIONS OF THE ACT. TH IS IS FURTHER BUTTRESSED BY SECTION 153A (1)(A) WHICH READS: 'NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 , SECTION 147 , SECTION 148 , SECTION 149 , SECTION 151 AND SECTION 153 , IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FUR NISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTH ER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. 7 20. THEREFORE, THE POSITION THAT EMERGES FROM THE A BOVE- MENTIONED PROVISION IS THAT ONCE THE ASSESSEE FILES A REVISED RETURN UNDER SECTION 153A , FOR ALL OTHER PROVISIONS OF THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED UNDER SECTION 139 . ON SIMILAR LINES, THE GUJARAT HIGH COURT IN THE C ASE OF KIRIT DAHYABHAI PATEL V. ASSISTANT COMMISSIONER OF INCOME TAX , (2015) 280 CTR (GUJ) 216, HELD THAT: 'IN VIEW OF SPECIFIC PROVISION OF S. 153A OF THE I.T. ACT. THE RETURN OF INCOME FILED IN RES PONSE TO NOTICE UNDER S. 153A OF THE I.T. ACT IS TO BE CONSIDERED AS RETURN FILED UNDER S. 139 OF THE ACT, AS THE AO HAS MADE A SSESSMENT ON THE SAID RETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENALTY UNDER S. 271(1)(C) OF THE I.T. ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RETURNED UNDER S. 153A , IF ANY.' 21. THUS, IT IS CLEAR THAT WHEN THE A.O. HAS ACCEPT ED THE REVISED RETURN FILED BY THE ASSESSEE UNDER SECTION 153A , NO OCCASION ARISES TO REFER TO THE PREVIOUS RETURN FILED UNDER SECTION 139 OF THE ACT. FOR ALL PURPOSES, INCLUDING FOR THE PURPOS E OF LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THE RETURN THAT HAS TO BE LOOKED AT IS THE ONE FILED UNDER SECTION 153A . IN FACT, THE SECOND PROVISO TO SECTION 153A(1) PROVIDES THAT 'ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YE AR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN T HIS SUB-SECTION PENDING ON THE DATE OF INITIATION OF THE SEARCH UND ER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE.' WHAT IS CLEAR FROM THIS IS THAT SECTION 153A IS IN THE NATURE OF A SECOND CHANCE GIVEN TO THE ASSESSEE , WHICH 8 INCIDENTALLY GIVES HIM AN OPPORTUNITY TO MAKE GOOD OMISSION, IF ANY, IN THE ORIGINAL RETURN. ONCE THE A.O. ACCEPTS THE R EVISED RETURN FILED UNDER SECTION 153A , THE ORIGINAL RETURN UNDER SECTION 139 ABATES AND BECOMES NON-EST. NOW, IT IS TRITE TO SA Y THAT THE 'CONCEALMENT' HAS TO BE SEEN WITH REFERENCE TO THE RETURN THAT IT IS FILED BY THE ASSESSEE. THUS, FOR THE PURPOSE OF LEVYING PENALTY UNDER SECTION 271(1)(C) , WHAT HAS TO BE SEEN IS WHETHER THERE IS ANY CONCEALMENT IN THE RETURN FILED BY THE ASSESSEE UNDER SECTION 153A , AND NOT VIS-A VIS THE ORIGINAL RETURN UNDER SECTION 139 . 8. SINCE THE IMPUGNED ISSUE HAS NOW BEEN SETTLED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE HON'BLE HIG H COURT OF DELHI [SUPRA], WE DO NOT FIND ANY MERIT IN THE LEVY OF PE NALTY ON THE AMOUNT OF RS. 2,23,68,002/-. 9. IN SO FAR AS THE LEVY OF PENALTY ON DEPOSITS MAD E IN HSBC ACCOUNT AND INTEREST EARNED THEREON IS CONCERNED, THIS TRIB UNAL IN ITA NO. 3917 TO 3921/DEL/2017 AND OTHERS IN ASSESSEES OWN CASE HAS MADE THE FOLLOWING OBSERVATIONS WHILE DELETING THE ADDITION. 24. BE THAT AS IT MAY, THE QUESTION WHICH NEEDS TO BE HIGHLIGHTED IS THAT EVEN ASSUMING THAT THE STATEMENT OF THE ASS ESSEE IS PARAMOUNT AND SACROSANCT, THEN THERE IS NO DENIAL B Y THE REVENUE AUTHORITIES THAT THE ASSESSEE HAS HONOURED HIS STAT EMENT AND 9 OFFERED RS.2,23,68,000/ IN HIS RETURN OF INCOME FO R A.Y 200708 AND HAS PAID TAXES THEREON. IN ALL HIS SUBMISSIONS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HIGHLIGHTED BY US ELSEWHERE, THE ASSESSEE WAS CONSTANTLY STATING THAT THIS PEAK CREDIT WAS CALCULATED BY THE TAX AUTHORITIES AND AT THE BEHEST OF THE TAX AUTHORITIES THE ASSESSEE OFFERED THE SAME IN HIS IN COME FOR A.Y 200708 AND PAID TAXES THEREON. 25. NOWHERE THE ASSESSING OFFICER HAS DEMOLISHED TH IS CLAIM OF THE ASSESSEE WHICH MEANS THAT THE ASSESSING OFFICER HAS INHERENTLY ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE DI SCLOSURE WAS AT THE BEHEST OF THE TAX AUTHORITIES AND CALCULATION O F PEAK CREDIT WAS ALSO AT THE BEHEST OF THE TAX AUTHORITIES. 26. WE HAVE CAREFULLY EXAMINED THE COMPUTATION OF I NCOME FOR A.Y 200708 AND UNDER THE HEAD INCOME FROM OTHER SOURCES AT ITEM L OTHER INCOME, THE ASSESSEE HAS SHOWN INC OME OF RS. 2,23,68,007/. ONCE THE ASSESSEE HAS RETURNED THE U NDISCLOSED INCOME AND PAID TAXES THEREON, IN OUR CONSIDERED OP INION, THERE SHOULD NOT BE ANY QUARREL TO BIFURCATE THE DISCLOSE D AMOUNT IN TWO A.YS WHEN TAX RATE IN BOTH THE A.YS IS THE SAME AND THERE IS NO LOSS TO THE REVENUE. WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE AUTHORITIES SHOULD DESIST FROM SUCH LITIGATION. 27. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, AS DISCUSSED HEREINABOVE, AS CULLED OUT FROM THE RECORDS, AND TH E RELEVANT DOCUMENTARY EVIDENCES, WE DO NOT FIND ANY MERIT IN BIFURCATING THE INCOME IN TWO A.YS WHEN THE ASSESSEE HAS PAID TAXES IN A.Y 2007 10 08. MAKING THE ADDITION OF SAME INCOME IN TWO A.YS DEFINITELY AMOUNTS TO DOUBLE TAXATION. WE, ACCORDINGLY DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION IN A.Y. 2006.07 AMOU NTING TO RS. 2,05,50, 550/ AND RS. 18,58,311.00 IN F.Y 200708 ALSO. ACCORDINGLY, THE APPEALS OF THE ASSESSEE IN ITA NOS . 6269 AND 6268/DEL/2017 ARE ALLOWED. 28. NOW WE WILL ADDRESS TO THE APPEALS OF THE REVEN UE. 29. IN ITA NO 6648/DELL/2017, THE REVENUE HAS RAISE D TWO ISSUES. ONE IS RELATING TO DELETION OF ADDITION OF RS.18,58,311/- MADE BY THE ASSESSING OFFICER UNDER SECTION 69 OF THE AC T ON ACCOUNT OF DIFFERENCE APPEARED IN PEAK BALANCES IN BANK ACCOUN T MAINTAINED WITH HSBC, GENEVA AND SECOND GROUND RELATING TO DEL ETION OF ADDITION OF RS. 73,074/- MADE BY THE ASSESSING OFFI CER ON ACCOUNT OF INTEREST ACCRUED TO THE ASSESSEE ON BANK BALANCE IN HIS FOREIGN BANK ACCOUNT MAINTAINED WITH HSBC, GENEVA. 30. THE GRIEVANCE RAISED VIDE GROUND NO. 1 BECOMES OTIOSE QUA OUR DECISION IN ITA NO 6268 AND 6269/DEL/2017. 31. ADDITION ON ACCOUNT OF INTEREST ACCRUED ON HSBC ACCOUNT, GENEVA IS COMMON IN ALL THE APPEALS OF THE REVENUE BEARING ITA NOS. 3917 TO 3921/DEL/2017, THOUGH THE QUANTUM OF AMOUNT MAY DIFFER. 32. THE SHORT ISSUE IS THAT IN ALL THESE APPEALS FO R THE REVENUE RELATING TO DIFFERENT A.YS, THE ASSESSING OFFICER W AS OF THE FIRM BELIEF THAT THE ASSESSEE MUST HAVE EARNED SOME INTE REST ON THE 11 BALANCES IN HIS BANK ACCOUNT WITH HSBC, GENEVA. THE ASSESSING OFFICER ASSUMED THAT IN INDIA A SAVINGS BANK ACCOUN T HOLDER EARNS INTEREST AT THE RATE OF 4%, THEREFORE, APPLYING THE SAME RATE, THE ASSESSING OFFICER MADE THE IMPUGNED ADDITION. 33. THE FIRST APPELLATE AUTHORITY IN ALL THE A.YS I N WHICH THE REVENUE IS IN APPEAL FOUND THAT THE ASSUMPTION MADE BY THE ASSESSING OFFICER IS BASELESS AND DELETED THE ADDIT ION. 34. BEFORE US, THE LEARNED DR STRONGLY SUPPORTED TH E FINDINGS OF THE ASSESSING OFFICER. 35. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSE E RELIED UPON THE DECISION OF THE LD. CIT(A). 36. ON THE FACTS MENTIONED HEREINABOVE, WE ARE OF T HE CONSIDERED OPINION THAT THE ACTION OF THE ASSESSING OFFICER DEFIES THE TAXABILITY OF CONCEPT OF REAL INCOME. THE UNDIS PUTED FACT IS THAT IN THE ALLEGED SHEETS OF BANK DEPOSITS RECEIVED FRO M THE FRENCH GOVERNMENT UNDER DTAC, THERE IS NO MENTION OF ANY I NTEREST PAID BY THE BANK TO THE ASSESSEE. THEREFORE, IT IS ILLOGICA L TO COMPUTE INTEREST AND THAT TOO AT THE RATE PREVAILING IN IND IA. SINCE THERE IS NO DOCUMENTARY EVIDENCE TO SUPPORT THE PRESUMPTION OF THE ASSESSING OFFICER, WE DO NOT FIND ANY REASON TO INT ERFERE WITH THE FINDINGS OF THE LD. CIT(A). 12 10. SUBLATO FUNDAMENTO CADIT OPUS, MEANING THEREBY, THAT IN CASE THE FOUNDATION IS REMOVED, THE SUPER STRUCTURE FALL S. SINCE THE FOUNDATION [ASSESSMENT] HAS BEEN REMOVED, THE SUPER STRUCTURE I.E. PENALTY MUST FALL. ACCORDINGLY, THE PENALTY IS DIR ECTED TO BE DELETED. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 6422/DEL/2018 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06.09. 2021 IN THE PRESENCE OF BOTH THE RIVAL REPRESENTATIVES. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06 TH SEPTEMBER, 2021 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 13 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER