Sh. Vijay Kumar Arora, New Delhi V. ACIT, New Delhi

ITA 6614/DEL/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7083 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI D BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER, AND S HRI KULDIP SINGH , JUDICIAL MEMBER ITA NO. 6614 /DEL/201 3 [A.Y 20 0 9 - 1 0 ] VIJAY KUMAR ARORA, VS. THE A . C . I . T UNIT NO.134, 1 ST FLOOR, CENTRAL CIRCLE - 19 RECTANGLE 1, SAKET DISTT. NEW DELHI CENTRE, SAKET, NEW DELHI - 110017 PAN AADP2122Q [APPELLANT] [RESPONDENT] DATE OF HEARING : 1 6 . 0 7 .201 8 DATE OF PRONOUNCEMENT : 1 8 .0 7 .2018 ASSESSEE BY : MS ANANYA KAPOOR, ADV REVENUE BY : SHRI AMIT JAIN, SR. DR ORDER PER N.K. BILLAIYA , ACCOUNTANT MEMBER, T HIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - XXXIII , NEW DELHI DATED 02.08.2013 PERTAINING TO A.Y 20 0 9 - 1 0 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT T HE CIT(A) ERRED IN UPHOLDING TH E PENALTY OF RS. 53 , 17 , 370/ - LEVIED BY THE AO U/S 271AAA OF THE I.T. ACT, 1961. 3. ROOTS FOR LEVY OF PENALTY LIE IN THE ASSESSMENT ORDER FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 31.12.2010. A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED OUT IN THE DAWAT GROUP OF CASES WH ICH INCLUDED THE ASSESSEE ALONG WITH SHRI ASHWIN ARORA, SHRI SU RINDER ARORA AND SHRI ASHOK ARORA. 4. AT THE VERY OUTSET, THE LD. AR POINTED OUT THAT A SIMILAR PENALTY LEVIED IN THE CASE OF ASHWIN ARORA AND SHRI ASHOK ARORA HAS BEEN DELETED BY THE TRIBUNAL. THE COUNSEL SUPPLIED COPY OF THE ORDER OF THE TRIBUNAL. 5. PER CONTRA, THE LD. DR COULD NOT BRING ANY DISTINGUISHING DECISION IN FAVOUR OF THE REVENUE. 6. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. ON SIMILAR SET OF FACTS, PENALTY WAS LE VIED U/S 271AAA OF THE ACT IN THE CASE OF SHRI 3 ASHWIN ARORA AND SHRI ASHOK ARORA. THE TRIBUNAL IN ITA NO. 6615/DEL/2013 AND 842/DEL/2014 HAS DELETED THE LEVY OF PENALTY FROM THE RESPECTIVE HANDS. ON FINDING PARITY OF FACTS AND CIRCUMSTANCES FOR LEVY OF P ENALTY U/S 271AAA OF THE ACT, WE DO NOT FIND ANY REASON NOT TO FOLLOW THE FOLLOWING FINDINGS OF THE COORDINATE BENCH OF THE TRIBUNAL WHICH READS AS UNDER: THE ID DR HAS POINTED OUT THAT THE MANNER OF EARNING OF THE SURRENDERED INCOME HAS NOT BEEN DISCLOSE D BY THE ASSESSEE WHEREAS THE ASSESSEE BY LETTER DATED 21.01.2010 HAS DISCLOSED THE MANNER OF EARNING THE SAID INCOME BY WAY OF TRADING IN COMMODITIES AND REAL ESTATE AND ALSO STATED THIS FACT IS SUBSTANTIATED FROM THE SEIZED MATERIAL. MOREOVER THIS FACTUA L POSITION IS NOT DENIED BY THE AO AND THIS IS NOT THE BASIS FOR IMPOSING THE PENALTY. IN THAT VIEW OF THE MATTER AND IN VIEW OF SUCH FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE AO AND ACCORDINGLY, WE DI RECT THE AO TO DELETE THE PENALTY IMPOSED UNDER SECTION 271 AAA OF THE ACT. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. RESPECTFULLY FOLLOWING THE FINDINGS OF T HE TRIBUNAL, THE AO IS DIRE C TED TO DELETE THE LEVY OF PENALTY U/S 271AAA OF TH E ACT . 4 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 6614/DEL/2013 IS ALLOWED . THE ORDER IS PRON OUNCED IN THE OPEN COURT ON 1 8 .0 7 .2018. SD/ - SD/ - [ KULDIP SINGH] [ N.K. BILLAIYA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 8 T H JU LY , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI 5 DATE OF DICTATION 16.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.07.2018 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