Vivek Jaipuria, New Delhi V. ITO, Ward- 29(5), New Delhi

ITA 6589/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3601 (ITAT-DELHI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: MUKUL BAGLA; VIKASH SINGH

Judgement Text

1 ITA.NO.6589/DEL./2017 SHRI VIVEK JAIPURIA, NEW DELHI. IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.6589/DEL./2017 ASSESSMENT YEAR 2013-2014 SHRI VIVEK JAIPURIA B-84/1, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI 110020 PAN ADJPJ9048D VS. THE INCOME TAX OFFICER WARD-29(5) NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI MUKUL BAGLA, C.A. AND SHRI VIKASH SINGH, C.A. FOR REVENUE : SHRI KAUSHLENDRA TIWARI, SR. D.R. DATE OF HEARING : 25.01.2018 DATE OF PRONOUNCEMENT : 01.02.2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-X, NEW DELHI, DATED 25 TH OCTOBER, 2016, FOR THE A.Y. 2013-2014, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSE E FILED RETURN OF INCOME AT RS.6,56,740. DURING THE YEAR UN DER CONSIDERATION, ASSESSEE HAS SHOWN INCOME FROM SALAR Y 2 ITA.NO.6589/DEL./2017 SHRI VIVEK JAIPURIA, NEW DELHI. AMOUNTING TO RS.13,80,000 IN THE RETURN OF INCOME A ND IT ADJUSTED LOSS OF RS.6,08,256 AGAINST THE SALARY INC OME AND IT REFLECTED GTI OF RS.7,71,744 AGAINST WHICH DEDUCTIO N UNDER CHAPTER-VIA AMOUNTING TO RS.1,15,000 WAS CLAIMED IN THE RETURN. 2.1. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF LOSS/DEDUCTION OF RS.6,08,256 CLAIMED IN THE RETURN . HOWEVER, NO DETAILS THEREOF HAD BEEN FURNISHED. HENCE, THE D EDUCTION OF LOSS CLAIMED BY THE ASSESSEE WAS DISALLOWED. THE A. O. MADE ADDITION OF RS.6,08,256 AND INITIATED PENALTY PROCE EDINGS UNDER SECTION 271(1)(C) OF THE ACT FOR CONCEALMENT/FURNIS HING OF INACCURATE PARTICULARS OF INCOME. SAME LANGUAGE HAV E BEEN USED AT THE END OF THE ASSESSMENT ORDER. THE A.O. I N THE PENALTY ORDER MENTIONED THAT NOTICE DATED 09 TH MARCH, 2016 HAVE BEEN ISSUED FOR LEVY OF PENALTY AND CASE FIXED ON 30 TH MARCH, 2016. THE A.O. VIDE SEPARATE ORDER LEVIED THE PENALTY UND ER SECTION 271(1)(C) OF THE I.T. ACT BECAUSE THE ASSESSEE HAS CONSCIOUSLY MADE THE CONCEALMENT AND DELIBERATELY FURNISHED INA CCURATE 3 ITA.NO.6589/DEL./2017 SHRI VIVEK JAIPURIA, NEW DELHI. PARTICULARS OF ITS INCOME. THE LD. CIT(A) CONFIRMED THE ORDER OF THE A.O. IN LEVYING THE PENALTY ON THE ABOVE ADDITI ON. 3. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM O F THE VIEW THAT PENALTY IS NOT LEVIABLE IN THE MATTER. LE ARNED COUNSEL FOR THE ASSESSEE PRODUCED COPY OF THE SHOW CAUSE NO TICE DATED 09 TH MARCH, 2016, IN WHICH THE A.O. HAS SIMPLY MENTIONE D YOU ARE HEREBY GIVEN AN OPPORTUNITY TO FURNISH YOUR EXP LANATION AS TO WHY PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT SHOULD NOT BE IMPOSED. THE CASE WAS FIXED BEFORE A.O. ON 30 TH MARCH, 2016. IT IS, THEREFORE, CLEAR THAT BEFORE ISSUE OF SHOW C AUSE NOTICE FOR LEVY OF PENALTY, THE A.O. HAS INITIATED THE PENALTY PROCEEDINGS FOR CONCEALMENT/FURNISHING INACCURATE PARTICULARS O F INCOME. THE A.O. IN THE ASSESSMENT ORDER DID NOT SPECIFY UN DER WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY P ROCEEDINGS HAD BEEN INITIATED THAT WHETHER FOR CONCEALMENT OF THE PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE A.O. HAD USED THE SAME LANGUAGE IN THE PENALTY ORDE R. IN THE SHOW CAUSE NOTICE DATED 09 TH MARCH, 2016, EVEN THE A.O. DID 4 ITA.NO.6589/DEL./2017 SHRI VIVEK JAIPURIA, NEW DELHI. NOT MENTION AS TO WHICH LIMB OF SECTION 271(1)(C) O F THE I.T. ACT, THE PENALTY PROCEEDINGS HAVE BEEN INITIATED AGAINST THE ASSESSEE. THE A.O. MERELY REFERRED TO THE ASSESSMEN T ORDER AND GIVEN THE SHOW CAUSE NOTICE AS TO WHY PENALTY SHOUL D NOT BE IMPOSED. THEREFORE, IN SUCH CIRCUMSTANCES, THE INIT IATION OF PENALTY PROCEEDINGS ITSELF IS BAD IN LAW AND IS LIA BLE TO BE QUASHED. I RELY UPON THE DECISION OF THE HONBLE KA RNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S. SSAS EMERALD MEAD OWS 73 TAXMAN.COM 241 WHICH HAS BEEN CONFIRMED BY THE HON BLE SUPREME COURT REPORTED IN 73 TAXMAN.COM 248. IN VIE W OF THE ABOVE, I SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND DELETE THE PENALTY. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 01 ST FEBRUARY, 2018 VBP/- 5 ITA.NO.6589/DEL./2017 SHRI VIVEK JAIPURIA, NEW DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.