Keshav Garg, Delhi V. ITO, Ward-38(2), New Delhi

ITA 6574/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8690 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: ARVIND KUMAR MAHESHWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NOS. 6574 & 6575/DEL/2018 ASSESSMENT YEARS: 2010-11 & 2011-12 SH. KESHAV GARG C/O G.S. KOHLI & CO., CAS R-739 (BASEMENT), NEW RAJINDER NAGAR, NEW DELHI. PAN NO. AEHPG5861J VS ITO WARD 38(2) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SH. ARVIND KUMAR MAHESHWARI, CA REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THESE TWO APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(APPEALS)-13, NEW DELHI DATED 20.08.2018 FOR THE AYS 2010-11 & 2011-12 RESPECTIVELY. THESE ARE BEING DISPOSED O F WITH THIS CONSOLIDATED ORDER. ITA NO. 6574/DEL/2018 (AY 2010-11) : 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(APPEAL) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY IMPOSED U/S 271B OF THE INCOME TAX ACT, 196 1. 2. IT IS WELL SETTLED LAW THAT THE PENAL ACTION SIMULT ANEOUSLY CANNOT BE TAKEN U/S 271A AS WELL AS 271B OF INCOME TAX DATE OF HEARING 04.04.2019 DATE OF PRONOUNCEMENT 08.04.2019 2 ITA NOS. 6574 & 6575/DEL/2018 ACT, 1961. THE APPELLANT HAS CONDUCTED THE CONCERN ED ACTIVITIES FOR 2 YEARS WHICH NO DOUBT COVERS 3 ASST T. YEARS WHERE THE PENALTY WAS IMPOSED U/S 271(1)(B) FOR THE PREVIOUS YEAR I.E. AY 2009-10 SUCH PENALTY HAS BEEN DELETED BY ITAT. 3. THAT THE APPELLANT CRAVES THEIR RIGHT TO AMEND, DEL ETE OR ADD ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. ITA NO. 6575/DEL/2018 (AY 2011-12) : - 3. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(APPEAL) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY IMPOSED U/S 271B OF THE INCOME TAX ACT, 196 1. 2. IT IS WELL SETTLED LAW THAT THE PENAL ACTION SIMULT ANEOUSLY CANNOT BE TAKEN U/S 271A AS WELL AS 271B OF INCOME TAX ACT, 1961. THE APPELLANT HAS CONDUCTED THE CONCERN ED ACTIVITIES FOR 2 YEARS WHICH NO DOUBT COVERS 3 ASST T. YEARS WHERE THE PENALTY WAS IMPOSED U/S 271(1)(B) FOR THE PREVIOUS YEAR I.E. AY 2009-10 SUCH PENALTY HAS BEEN DELETED BY ITAT. 3. THAT THE APPELLANT CRAVES THEIR RIGHT TO AMEND, DEL ETE OR ADD ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 4 . L EARNED C OUN S EL FO R TH E ASS E SS E E SUBMITTED T HAT THE ASSESSEE HAS NO T MAI N TAINED AN Y BOOK S OF ACCOUNT AND , T HEREF O R E , NO P ENALT Y U/ S 271 B OF THE INCO M E -TA X ACT , 1 961 COULD BE L E VI ED FO R N O N - AUDIT O F T H E ACCOUNT S . H E RE L IE D O N T H E D EC I S I O N OF H O N ' BL E ALL AHA B A D HIGH C O U R T I N CIT V S . B I S AU L I T RACTO RS - [200 8] 299 I TR 21 9 ( A LL) . C LT V S . S .K . G UPT A AND CO . - [ 2 010 ] 32 2 I T R 8 6 (A L L ) AND O F H O N ' BL E KA R NATA K A HIG H COU RT IN ACIT AND ANOTHER VS . D R . K . S AT I S H S H ETTY - [2009] 310 ITR 366 ( KA R N ) I N S UP PO R T O F H I S A R G U M E NT S . H E SU BM I TTE D T H A T T H E ASSESSEE HAS BEE N SEPAR A TELY P E NA LIZ ED F O R N O N-MA I NT ENANCE OF ACCOUNTS BY THE ASSESS I NG 3 ITA NOS. 6574 & 6575/DEL/2018 O F FICER BY L EVY I NG PENA LTY O F RS. 25,000/ - B Y ORDER DATED 26.09.2013 AND HAS FI L E D A COP Y TH E R E OF B EF O R E T H E T R I BUN AL . HE SUBM I T T ED T HAT THE ASSESSING O FF I C ER W A S N O T J U S TI F I E D I N LEVYIN G PENALTY TWICE FO R T HE SA ME CHARGE . 5 . LEARNED DR HAS R E LI ED ON T HE ORDE R OF THE ASSESSING OFFICE R AND TH E LEA RN ED C LT ( A ) . H E S U BMITT E D T H AT THE ASSE S SEE HA S ADMITTED LY NOT UNDER T A K E N T HE AU D I T O F I T S ACCO UNT S A N D HAS NOT MA INT A I N ED ACCOUNT BOOKS AND SEPARATE PENALTIES ARE P R OV I DED UNDER THE ACT FOR THE TWO SEPA R ATE DEF A U L T S BY THE L EGISLAT U RE . 6 . I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDER OF THE AO AND TH E L EA R NED CLT ( A ) . I F I N D T HAT THE ASSESSEE HAS C L A IM ED THA T I T W A S N O T M A I NT A I NIN G ANY A CC OUNT BOO K S AND , T H ERE F O R E , THE AUD I T OF T HE SAME W AS N OT POSS I BL E AND H AS RELIED ON THE DEC I SION OF HON'BLE COURTS CITED AT THE BAR BY THE LEAR NED COUNSEL FOR THE ASSESSEE. I F IND THAT THE ASSESSING OFF I CER HAS SEPARATE L Y PENALIZED THE ASSESSEE FOR NON-MA I N T ENANCE OF ACCOUNTS BY LEVYING A PENALTY OF RS. 25,000/- U/S271A OF THE ACT AND THE LD. COUNSEL FOR THE ASSESSEE HAS STATED AT THE BAR THAT THE ORDER HAS BECOME FINAL AND ASSESSEE HAS ALREADY PAID THE AMOUNT OF PENALTY. IN THESE FACTS, I HOLD THAT SINCE THE ASS ESSEE HAS BEEN SEPARATELY PENALIZED FOR NON-MAINTENANCE OF ACCOUNT S, THE PENALTY FOR NON-AUDIT OF THE ACCOUNTS SEPARATELY WAS NOT JU STIFIED AND ACCORDINGLY, THE PENALTY IMPOSED U/S 271B IS DELETE D AND THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. 4 ITA NOS. 6574 & 6575/DEL/2018 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/04/2019 SD/- (N.S. SAINI) ACCOUNTANT MEMBER DATED: 08.04.2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 04/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 08/04/2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 08/04/2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 09/04/2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09/0 4/2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 5 ITA NOS. 6574 & 6575/DEL/2018