M/s. Delhi Kirana Company, New Delhi V. ITO, New Delhi

ITA 6738/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4524 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 11-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KRITI GUPTA
• Section: 143(3)

Judgement Text

1 ITA NO. 6738/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI R. S. SYAL, VICE PR ESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A .NO. 6738/D EL/2014 (A.Y 2007-08) DELHI KI RANA COMPANY 138, GALI MASJID, TEHWAR KHAN, NAYA BANS NEW DELHI AADFD6272C (APPELLANT) VS ITO WARD-28(1) NEW DELHI (RESPONDENT) APPELLANT BY MS. KRITI GUPTA, CA RESPONDENT BY SH. ANSHU PRAKASH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 26/09/2014 PASSED BY CIT(A)S XXV-NEW DELHI FOR ASS ESSMENT YEAR 2007-08. 2. THE PRESENT APPEAL IS FILED IN RESPECT OF PENALT Y OF RS.1,50,000/- BY THE ASSESSEE. 3. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE I NCOME-TAX ACT, 1961 ON 29/12/2009 AT AN INCOME OF RS.11,46,37 8/- ON ACCOUNT OF BOGUS CASH LOAN. THE PENALTY PROCEEDING S U/S 271(1)(C) DATE OF HEARING 13.09.2017 DATE OF PRONOUNCEMENT 14.09.2017 2 ITA NO. 6738/DEL/2014 WERE INITIATED SEPARATELY FOR CONCEALMENT OF INCOME AND FILING INACCURATE PARTICULARS OF INCOME AGAINST THE ORDER OF THE ASSESSING OFFICER . THE ASSESSEE FILED APPEAL BEFORE THE CIT (A) WHICH WAS PARTLY ALLOWED VIDE ORDER DATED 12/10/2011. THE AS SESSEE FILED APPEAL BEFORE THE ITAT BEING ITA NO. 5653/DEL/2011 WHICH WAS DECIDED ON 15/1/2016 WHEREBY THE TRIBUNAL HAS REMIT TED BACK THE MATTER TO THE ASSESSING OFFICER. 4. THE LD. AR PERUSED THE ORDER OF THE ITAT IN ASSE SSEES OWN CASE FOR THE QUANTUM APPEAL AND SUBMITTED THAT THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER, THE PENALTY DOES NOT SURVIVE. 5. THE LD. DR DID NOT CONTROVERT THE SAME. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS AS WELL AS THE ORDER DATED 15/1/2016 PASSED BY THE ITA T IN QUANTUM APPEAL. SINCE THE ISSUE IN QUANTUM HAS BEEN RESTOR ED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION, THE PENAL TY IS ALSO RESTORED ACCORDINGLY. OUR VIEW IN RESTORING THE PENALTY TO THE A.O IS FORTIFIED BY THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF MOHD. MOHATRAM FAROOQUI VS. CIT(SC) 2010-TIOL-23-SC-IT I N WHICH IT HAS BEEN HELD THAT IF ADDITION IS RESTORED TO THE A .O, THEN PENALTY SHOULD ALSO BE RESTORED. THE HONBLE JURISDICTIONA L HIGH COURT IN SANJAY GUPTA VS. CIT (2014) 366 ITR 18 (DEL) HAS AL SO HELD THAT WHERE THE QUANTUM HAS BEEN REMANDED TO THE A.O, THE QUESTION OF 3 ITA NO. 6738/DEL/2014 PENALTY ON ACCOUNT OF THE SAID AMOUNT BEING TREATED AS UNDISCLOSED INCOME, SHOULD ALSO BE REMANDED TO THE A.O. WE, TH EREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO TH E FILE OF THE A.O FOR DETERMINING THE QUESTION OF IMPOSITION OR OTHER WISE OF THE PENALTY ON THE ISSUE, AFTER THE PASSING OF A FRESH ASSESSMENT ORDER ON THIS COUNT. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 14TH SEPTEM BER 2017 . SD/- SD/- (R. S. SYAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDI CIAL MEMBER DATED: 14/09/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 6738/DEL/2014 DATE 1. DRAFT DICTATED ON 13/09/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 14/09/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 14.09.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 14 .09.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.