Sonia Varshney, Ghaziabad V. ITO, Ward- 3(4), Noida

ITA 6682/DEL/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2945 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY TRIPATHI
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 147; 69; 271(1)(c); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR US, JUDICIAL MEMBER ITA No. 6682/Del/2018 (Assessment Year : 2009-10) Sonia Varshney SRD-2B, Shipra Reviera, Indirapuram, Ghaziabad Uttar Pradesh PAN No. ACZPV 3560 D Vs. ITO Ward-3(4) Noida (APPELLANT) (RESPONDENT) Assessee by Shri P. P. Singh, Adv. Revenue by Shri Sanjay Tripathi, Sr. D.R. Date of hearing: 05.05.2022 Date of Pronouncement: 05.05.2022 ORDER PER ANIL CHATURVEDI, AM : This appeal filed by the assessee is directed against the order dated 29.06.2018 of the Commissioner of Income Tax (Appeals)-I, Noida relating to Assessment Year 2009-10. 2. Brief facts of the case as culled out from the material on record are as under:- 2 3. Assessee is a non-resident Indian. AO has noted on the basis of the AIR information received it was found that assessee had purchased an immovable property of Rs.49,85,250/-. Thereafter, proceedings u/s 147 of the Act initiated and consequently in the assessment framed u/s 147 r.w.s 144 of the Act vide order dated 29.11.2016 an addition of Rs.45,97,250/- was made on account of unexplained investment u/s 69 of the Act. On the aforesaid addition made, AO vide penalty order dated 24.05.2017 levied penalty of Rs.16,44,640/- u/s 271(1)(c) of the Act. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 29.06.2018 dismissed the appeal of the assessee. Aggrieved by the order of CIT(A), assessee is now in appeal and challenge the levy of penalty u/s 271(1)(c) of the Act and raised following grounds: 1. “ The order of the learned Commissioner of Income-tax (Appeal) is erred in law and facts by way of confirming the Imposition of penalty without giving a reasonable opportunity of being heard. 2. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeal) has erred in deciding Penalty order before deciding the quantum appeal which lying with the same CIT(A) and still pending for disposal. 3. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeal) has erred in imposing Penalty of Rs. 16,44,640/- in respect of tax ought to be evaded on concealed income of Rs.49,85,250/- for unexplained investing in property allegedly treating the same as unexplained Investment, where as appellant was co-owner in the above referred property and full consideration was paid by her husband Deepak Varshney duly verified to the satisfaction of DCIT international taxation NOIDA. in fact order of penalty was passed by learned AO without serving proper notice to the appellant. 3 4. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeal) has further erred in summarily ignoring the contemporary & conclusive evidence filed before him and without making any enquiry from learned AO which has granted stay on demand on the same facts after explaining full details but rejected them without giving any proper reasoning for the same. 5. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeal) has erred in ignoring the settled principles of taxing real income as laid down by the judicial precedence in various pronouncements and providing opportunity of being heard to follow the principle of natural justice. 6. Appellant seeks relief by way deleting the penalty imposed by learned AO and wrongly confirmed by learned CIT(A) Noida, because there is no concealment or furnishing of in accurate particulars of income by the appellant at all.” 4. Before us, at the outset, Learned AR submitted that in the present case the penalty u/s 271(1)(c) of the Act was levied by the AO on the addition of Rs.49,85,250/- made on account of unexplained investment u/s 69 of the Act. He submitted that against the aforesaid quantum addition made by the AO, assessee had carried the matter before CIT(A) who vide order dated 14.02.2020 in Appeal No.384/E-filed/2017-18/Noida had deleted the addition made by AO. He pointed to the copy of the relevant order. He thereafter submitted that since the addition itself has been deleted, the penalty on such addition does not survive. He therefore submitted that penalty levied by the AO and confirmed by CIT(A) be deleted. 4 5. Learned DR on the other hand did not controvert the submissions made by Learned AR but supported the order of lower authorities. 6. We have heard the rival submissions and perused the material available on record. The issue in the present ground is with respect to the levy of penalty u/s 271(1)(c) of the Act on the addition of Rs.49,85,250/- made on account of unexplained investment u/s 69 of the Act. We find that the aforesaid addition on account of unexplained investment has been deleted by CIT(A) vide order dated 14.02.2020 and the aforesaid order of CIT(A) has attained finality. In such circumstances when the quantum itself has been deleted, the penalty u/s 271(1)(c) of the Act on such addition does not survive. We therefore direct deletion of penalty u/s 271(1)(c) of the Act. Thus the ground of assessee is allowed. 7. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 05.05.2022 Sd/- Sd/- (YOGESH KUMAR US) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 05.05.2022 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI