M/s. German Homoeopathic Distributors Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 6750/DEL/2013

• Counselvise Citation: 675020114 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 26-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJANA
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC-2, NEW DELHI) BEFORE SHRI P. K. BANSAL, ACCOUNTANT MEMBER I.T.A. NO. 6750/DEL/2013 ASSESSMENT YEAR : 2005-06 GERMAN HOMEOPATHIC DISTRIBUTORS PVT. LTD., VS. ACIT , CIRCLE 12(1), 21/21-A, DAYANAND ROAD, NEW DELHI DARYA GANJ, NEW DELHI GIR / PAN:AAACG1013G (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P. DAM KANUNJANA, SR. DR DATE OF HEARING : 29.11.2015 DATE OF PRONOUNCEMENT : 09.11.2015 ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 18.11.2013 PASSED BY LD. CIT(A) XV, NEW DELHI FOR T HE ASSESSMENT YEAR 2005-06 BY WHICH LD. CIT(A) SUSTAINED THE PENALTY I MPOSED BY THE A.O. AMOUNTING TO RS.70,000/- U/S 271(1)(C) OF THE I. T. ACT, 1961. 2. NONE APPEARED ON BEHALF OF ASSESSEE, I THEREFORE , DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING LD. D.R. 3. AFTER HEARING LD. D.R., I NOTED THAT THE A.O. LE VIED THE PENALTY U/S 271(1)(C) AMOUNTING TO RS.70,000/- ON THE ADDITION SUSTAINED BY L. CIT(A) VIDE ORDER DATED 26.11.2010 ON ACCOUNT OF ; (A) DISALLOWANCE ON ACCOUNT OF SHORT TERM CAPITAL L OSS RS.1,08,259/- (B) DISALLOWANCE U/S 14A RS. 67,399/- ITA NO.6750/DEL/2013 2 4. FROM THE PENALTY ORDER ITSELF, IT IS APPARENT TH AT THE A.O. HAS LEVIED THE PENALTY FOR FURNISHING INACCURATE PARTICULARS OF IN COME BY THE ASSESSEE AS THE ADDITIONS HAVE BEEN SUSTAINED BY LD. CIT(A). 5. THE FACTS I NOTED IN RESPECT OF ADDITION OF RS.1 ,08,259/- ARE THAT THE ASSESSEE CLAIMED SHORT TERM CAPITAL LOSS OF RS.1,00 ,450/- IN RESPECT OF BIRLA MIP MUTUAL FUND AND SIMILARLY, RS.7,809/- IN RESPEC T OF TEMPLETON INDIA MUTUAL FUND. BUT THE A.O. WAS OF THE VIEW THAT THE ASSESSEE HAD EARNED DIVIDEND INCOME, THEREFORE, PROVISIONS OF SECTION 9 4(7) WERE APPLICATION AND ACCORDINGLY, THE ADDITIONS WERE MADE. SIMILARLY, I N RESPECT OF DISALLOWANCE MADE U/S 14A OF THE ACT, THE A.O. DISALLOWED 10% OF THE EXPENSES UNDER VARIOUS HEADS FOR EARNING THE DIVIDEND INCOME BY AP PLYING THE PROVISIONS OF SECTION 14A OF THE ACT. WHEN THE MATTER WENT BEFOR E LD. CIT(A), LD. CIT(A) REDUCED THE DISALLOWANCE U/S 14A TO 5%. NOW , THE QUESTION BEFORE US ARRIVES, WHETHER UNDER THESE FACTS, IT CAN BE SA ID THAT THE ASSESSEE HAD FILED INACCURATE PARTICULAR OF INCOME. THE PROVISI ONS OF SECTION 271(1)(C) MANDATES THAT HT A.O. IF SATISFIES DURING THE COURS E OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS CONCEALED THE PAR TICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME, HE CAN LEVY THE PENALTY ON THE ASSESSEE. EXPLANATION (1) IS APPLICABLE FOR CONCEA LING THE PARTICULARS OF INCOME AND THE INITIAL ONUS LIES ON THE ASSESSEE TO PROVE THAT HE HAS NOT CONCEALED THE PARTICULARS OF INCOME. WHILE IN RESP ECT OF INACCURATE PARTICULARS OF INCOME, THE ONUS LIES ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. B OTH THE CHARGES ARE ENTIRELY DIFFERENT. 6. IN THIS CASE, THE A.O. LEVIED THE PENALTY FOR F URNISHING INACCURATE PARTICULARS OF INCOME, THEREFORE, I AM OF THE VIEW THAT IT IS THE A.O. WHO IS ITA NO.6750/DEL/2013 3 BOUND TO DISCHARGE ITS ONUS THAT WHAT PARTICULARS H AVE BEEN FURNISHED BY THE ASSESSEE INCORRECTLY AND INACCURATELY. SO FAR AS T HE SHORT TERM CAPITAL LOSS ON MUTUAL FUNDS IS CONCERNED, THERE IS NO INACCURACY I N MY OPINION IN THE PARTICULARS FURNISHED BY THE ASSESSEE. 7. SIMILARLY, IN RESPECT OF DISALLOWANCE MADE U/S 1 4A OF THE ACT, THE DISALLOWANCE HAS MERELY BEEN MADE ON ESTIMATE BASIS BY APPLYING AN AD-HOC PERCENTAGE, THEREFORE, IT CANNOT BE SAID THAT THE A SSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME. I, THEREFORE , SET ASIDE THE ORDER OF LD. CIT(A). 8. IN THE RESULT, THE PENALTY IMPOSED BY THE A.O. S TANDS DELETED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH NOV., 2015. SD./- (P. K. BANSAL) ACCOUNTANT MEMBER DATE: 09 TH NOV., 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.6750/DEL/2013 4 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 9/11 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 9/11 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 09/11 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 09.11 SR. PS/PS 7 FILE SENT TO BENCH CLERK 16/11 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER