Yuvraj Singh, New Delhi V. ITO, Ward-30(1), New Delhi

ITA 6594/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9288 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Section: 271(1)(c); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.6594/DEL/2018 ASSESSMENT YEAR: 2010-11 YUVRAJ SINGH S-337, GROUND FLOOR, GREATER KAILASH, PART-II NEW DELHI-110048 PAN NO.BIEPS9585D VS INCOME TAX OFFICER WARD 30 (1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI S. L. ANURAGI, SR. DR DATE OF HEARING: 01/07/2019 DATE OF PRONOUNCEMENT: 08/07/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 27.10.2016 OF THE CIT(A)-10, NEW DELHI RELATING TO A. Y. 2010-11. 2. NONE APPEARED ON BEHALF OF THE ASSESSE AT THE T IME OF HEARING. IT WAS FURTHER SEEN THAT THE NOTICE ISSUE D BY THE REGISTRY THROUGH RPAD WAS RETURNED UN-SERVED BY THE POSTAL AUTHORITIES. THEREFORE, THIS APPEAL IS BEING DISPOS ED OFF ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEA RING THE LD. DR. PAGE | 2 3. LEVY OF PENALTY OF RS.1,70,317/- BY THE ASSESSIN G OFFICER U/S. 271 (1) (C) OF THE ACT WHICH HAS BEEN CONFIRM ED BY THE CIT(A) IS THE ONLY ISSUED RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 147 /143(3) OF THE ACT ON 28.03. 2016 AT A TOTAL INCOME OF RS.2,79,810/- AS AGAINST THE RETURN ED INCOME OF RS.1,04,490/- BY MAKING ADDITION OF RS.1,70,317/- O N ACCOUNT OF LONG TERM CAPITAL GAIN. IT WAS NOTED BY THE ASS ESSING OFFICER THAT THE ASSESSEE DURING THE YEAR HAD SOLD JEWELLER Y AND HAD EARNED LONG TERM CAPITAL GAIN AMOUNTING TO RS.1,70, 317/- WHICH WAS NOT OFFERED TO TAX AND ACCORDINGLY ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 5. IN APPEAL THE LD. CIT(A) CONFIRMED THE PENALTY S O LEVIED BY THE ASSESSING OFFICER BY OBSERVING AS UNDER :- 4.3 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON 15/02/2016, THE AR OF THE APPELLANT WAS ASKED TO EXPLAIN THE SOURCE OF CA SH DEPOSIT IN HIS BANK ACCOUNT AND NEXT DATE OF HEARING WAS ON 25/02/2016. ON 25/02/2016, THE APPELLANT SUBMITTED THE SOURCE OF CASH DEPOSIT INTE R- ALIA BY WAY OF SALE OF GOLD AND SILVER JEWELLERY. WHEN THE AO CONFRONTED T HE AR OF THE APPELLANT REGARDING THE ISSUE OF CAPITAL GAIN ON THE SALE OF GOLD AND SILVER JEWELLERY, THE APPELLANT FILED DETAILS OF LTCG OF RS.1,70,317/ - VIDE LETTER DATED 04/03/2016. ADDITION ON ACCOUNT OF LTCG AMOUNTING T O RS.1,70,317/- WAS MADE BY THE AO. PENALTY PROCEEDINGS U/S 271(1 )(C) WERE ALSO INITIATED AND PAGE | 3 PENALTY OF RS.71,886/- AT THE RATE OF 300% OF TAX S OUGHT TO BE EVADED WAS IMPOSED U/S 271 (1 )(C). IT HAS BEEN SUBMITTED BY T HE APPELLANT THAT LTCG WAS VOLUNTARILY OFFERED TO TAX DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THEREFORE, PENALTY SHOULD NOT BE LEVIDED. IT HA S ALSO BEEN SUBMITTED THAT DUE TO PENDING DISPUTE, THE RENT FOR THE ABOVE MENT IONED FOUR MONTHS WAS NOT RECEIVED BY THE APPELLANT AND THEREFORE, THE RE NTAL INCOME FOR THE SAID PERIOD WAS NOT INCLUDED IN THE RETURN OF INCOME. IT IS A FACT THAT LTCG WAS NOT OFFERED VOLUNTARILY BUT WAS OFFERED TO TAX WHEN SPECIFICALLY CONFRONTED BY THE ASSESSING OFFICER WHILE MATTER WAS UNDER INV ESTIGATION THAT TOO AFTER SO MANY HEARINGS BEFORE THE AO. IN THIS REGARD, REL IANCE IS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F MAK DATA P. LTD VS CIT 358 ITR 593 (SC) THE HONBLE COURT HAS HELD THA T - THE STATUTE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES UNDER EXPLANA TION 1 TO SEC. 271(1)(C) OF THE ACT. IT IS TRITE LAW THAT THE VOLUNTARY DISC LOSURE DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. TH E LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HIS CONCEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY'. FURTHER RELIANCE IS ALSO MADE ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V ZOOM COMMUNICATION PVT. LTD. 327 ITR 51. CONSIDERING THE ABOVE, I CONFIRM THE PENALTY IMPOSED BY THE AO. ACCORDINGLY, THE ABOVE G ROUND OF APPEAL IS DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. I HAVE PERUSED THE ORDERS OF THE AO AND CIT(A) AND HEARD THE LD. DR. IT IS AN ADMITTED FACT THAT DESPITE SA LE OF JEWELLERY AND EARNING LONG TERM CAPITAL GAIN, THE ASSESSEE HA S NOT PAGE | 4 DISCLOSED THE SAME IN THE RETURN OF INCOME WHICH WA S ADDED BY THE ASSESSING OFFICER AND THEREAFTER INITIATED PENA LTY PROCEEDINGS U/S. 271 (1) (C) OF THE ACT AND LEVIED PENALTY OF RS.71,886/- BEING 300% OF THE TAX SOUGHT TO BE EVAD ED. IN MY OPINION LEVY OF PENALTY @ 100% IS NOT JUSTIFIED. I , THEREFORE, RESTRICT THE SAME TO 100% TAX SOUGHT TO BE EVADED W HICH AMOUNTS TO RS.23,962/-. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.07.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 08.07.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 01.07.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02.07.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING 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 WE BSITE OF ITAT 08.07.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER