ACIT, Circle-52(1), New Delhi V. Sushmita Gupta, New Delhi

ITA 6478/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0546 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RAKASH DUBEY SENIOR
• Keywords: Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6478/DEL./2017 (ASSESSMENT YEAR : 2009-10) ACIT, CIRCLE 52 (1), VS. MS. SUSHMITA GUPTA, NEW DELHI. 100, SUNDER NAGAR, NEW DELHI 110 003. (PAN : ACZPG1440P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ABHISHEK MATHUR, CA REVENUE BY : SHRI PRAKASH DUBEY, SENIOR DR DATE OF HEARING : 06.07.2021 DATE OF ORDER : 06.07.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ACIT, CIRCLE 52 (1), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 26.05.2017 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-31, NEW DELHI DISMISSING THE PENALTY ORDER DATED 04.02.2014 PASSED UNDER SEC TION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA T HAT :- ITA NO.6478/DEL./2017 2 (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY LEVIED BY THE A.O. U/S 271(L)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.50,98,500/- AND NOT APPRECIATING THE FACT THAT A .D. HAS LEVIED PENALTY AFTER RECORDING THE SATISFACTION THA T THE ASSESSEE HAD WILLFULLY CONCEALED THE INCOME. (II) WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY WHOLLY INSTEAD OF RES TRICTING THE SAME TO THE EXTENT OF PENALTY LEIVABLE U/S 271AAA A S HE WAS CONVINCED THAT IT IS MANDATORY TO DO SO. (III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL GR OUNDS OF APPEAL TAKEN BY THE ASSESSEE AND DELETING THE PENAL TY LEVIED BY THE A.O. U/S 271(L)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.50,98,500/- NOTWITHSTANDING HOLDING THAT A.O. IS HOWEVER, FREE TO INITIATE PENALTY PROCEEDINGS U/S 271AAA INS TEAD OF INITIATING THE PENALTY PROCEEDINGS HIMSELF U/S 271A AA AS THE LIMITATION TO INITIATE PENALTY PROCEEDING BY ASSESS ING OFFICER HAS ALREADY ELAPSED. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT FOR CONCEALING THE PARTICULARS OF INCOME. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO PROCEEDE D TO LEVY THE PENALTY OF RS.50,98,500/- @ 100% OF THE TAX SOUGHT TO BE EV ADED. 3. ASSESSEE CARRIED THE MATTER BY WAY OF APPEAL BEF ORE THE LD. CIT (A) WHO HAS DELETED THE PENALTY BY ALLOWING THE APP EAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBU NAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED ITA NO.6478/DEL./2017 3 BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT ADDITIONS MADE IN THE QUANTUM PROCEED INGS HAVE SINCE BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.15/DEL/2013 VIDE ORDER DATED 21.12.2018 AND AS SUCH, PENALTY LEVIED IS NOT SUSTAINABLE AND BROUGHT ON RECORD THE COPY O F THE ORDER OF THE TRIBUNAL DATED 21.12.2018 (SUPRA). 6. UNDISPUTEDLY, COORDINATE BENCH OF THE TRIBUNAL V IDE ORDER DATED 21.12.2018 (SUPRA) DELETED THE ADDITIONS. IN THESE CIRCUMSTA NCES, THE PENALTY LEVIED BY THE AO IS NOT SUSTAINABLE IN VIEW OF THE LAW LAID DOWN BY THE HONBLE APEX COURT IN CASE CITED AS K.C. BUILDERS & ANR VS. ACIT 265 ITR 562 (SC) BECAUSE WHEN THE ADDITION MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED HAVE BEEN DELETED THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT AND IN SUCH CASE, NO PENALTY CAN SU RVIVE AND THE PENALTY IS LIABLE TO BE CANCELLED. SO, IN VIEW OF THE MATTER, FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER PASS ED BY THE LD. CIT (A), THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF JULY, 2021. (O.P. KANT) (KULDIP SIN GH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE DAY OF JULY, 2021/ TS ITA NO.6478/DEL./2017 4 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-31, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.