DCIT, New Delhi V. Sh. Himanshu Verma, Delhi

ITA 6903/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3566 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO S . 6903 & 6904/D EL/201 5 A.YRS. : 2010-11 & 2011-12 DCIT, CC-20, NEW DELHI VS. SH. HIMANSHU VERMA, FLAT NO. H-104, FRIENDS CGHS LTD., PLOT NO. 49, I.P. EXTENSION, PATPARGANJ, DELHI 110 092 (PAN: AFBPV8131K) (ASSESSEE) (RESPONDENT) REVENUE BY : MS. ASHIMA NEB, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THESE APPEALS AGAINST THE RESP ECTIVE IMPUGNED ORDERS OF THE LD. CIT(A)-XXI, NEW DELHI R ELEVANT TO ASSESSMENT YEARS 2010-11 & 2011-12 RESPECTIVELY. 2. SINCE THE ISSUES INVOLVED IN THESE APPEALS WERE I DENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, B Y DEALING WITH ITA NO. 6903/DEL/2015 (AY 2010-11). 3. THE GROUNDS RAISED IN THE REVENUE S APPEAL FOR ASSESSMENT YEAR 2010-11 READ AS UNDER:- 2 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS. 19,75,768/- LEVIED U/S. 271(1)(C) OF THE ACT, WITHOUT PROPERLY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE ORDER OF LD. CIT(A)IS CONTRADICTORY I.E. ON ONE HAND IT IS ACCEPTED THAT ASSESSEE IS IN BUSINESS OF PROVIDING ENTRIES WHICH IS AN ILLEGAL ACTIVITIES AND WHICH HE HAS NEVER DISCLOSED TO THE DEPARTMENT AND MENSREA IS CLEARLY INVOLVED IN SUCH CASE WHEREAS ON THE OTHER HAND DELETING THE PENALTY BY HOLDING THAT THE ASSESSEE HAS NOT CONCEALED PARTICULARS OF INCOME. 3(A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY / ALL OF THE GROUNDS OF APEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 4. THE GROUNDS RAISED IN REVENUES APPEAL FOR ASSES SMENT YEAR 2011-12 READ AS UNDER:- 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS. 31,77,084/- LEVIED U/S. 271(1)(C) OF THE ACT, WITHOUT PROPERLY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3 2(A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY / ALL OF THE GROUNDS OF APEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 5. AT THE TIME OF HEARING, LD. DR RELIED UPON THE ORD ER OF THE AO AND REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. SHE STATED THAT LD. CIT(A) ERRED IN DELETING THE PENALTY IN DISPUTE, WITHOUT APPRECIATING THE TOTALITY OF FACTS AND MERIT OF THE CASE; NOT GIVEN ANY PROPER JUSTIFICATION FOR THE DELETION OF THE PENALTY IN DISPUTE, WHICH IS CONTRARY TO LAW AND THE SAME ITSELF PROVES THAT THAT LD. CIT(A) IN A HURRY MANNER HAS PASSED THE NON- SPEAKING AND LACONIC ORDER WHICH NEEDS TO BE SET ASIDE TO THE FIL E OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE ISSUES IN DI SPUTE AFRESH AND PASS A WELL REASONED AND SPEAKING ORDER. IN SUPPORT OF HER ARGUMENTS SHE HAS FILED A COPY OF ORDER PASSED BY T HE HONBLE SUPREME COURT OF INDIA IN THE CASE OF ASSTT. COMMISSIO NER OF INCOME TAX VS. M/S SHUKLA & BROTHERS DECIDED IN SLP( C) NO. 16466 OF 2009 VIDE ORDER DATED 15.09.2010. FINALLY SHE RE LIED UPON THE ORDER OF THE AO IN BOTH CASES. 4 6. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTE R IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND T HE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THA T NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT AP PEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 7. WE HAVE LD. DR AND PERUSED RECORDS, ESPECIALLY T HE IMPUGNED ORDER. FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING THE RELEVANT FINDINGS OF THE LD. CIT(A) AS UNDER:- 5. I HAVE CAREFULLY GONE THROUGH THE PENALTY ORDER AS WELL AS THE SUBMISSIONS OF THE APPELLANT BOTH WRITTEN AS WELL AS THE ONES MADE DURING THE COURSE OF HEARING. I TAKE NOTE OF FOLLOWING CRITICA L FACTS AND CIRCUMSTANCES OF THE MATTER: 1. THE AO HAS LEVIED PENALTY SOLELY FOR THE REASON THAT PART OF THE ADDITIONS WERE CONFIRMED BY THE CIT(A). 2. THE AO HAS MECHANICALLY MADE REFERENCE TO VARIOUS CASE LAWS WITHOUT BOTHERING TO COMPARE FACTS AND CIRCUMSTANCES OF THOSE CASES WITH THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE. 3. THE AO HAS NOT DEALT WITH VARIOUS CASES BROUGHT TO HIS ATTENTION BY 5 THE APPELLANT AND THE PROPOSITIONS OF LAW COMING OUT FROM THEM. 4. THE AO HAS MECHANICALLY INITIATED PENALTY BOTH U/S. 271AAA AND 271(1) OF THE ACT WITHOUT APPLYING HIS MIND TO THE FACTS OF THE CASE AND ALSO EVEN WITHOUT REALIZING THAT PENALTY UNDER BOTH THE SECTIONS CANNOT BE LEVIED. 5. THE AO HAS IMPOSED PENALTY WITHOUT MAKING ANY EFFORT TO SATISFY THE BASIC REQUISITE OF LAW AS TO WHETHER THE APPELLANT CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. 6. THE AO HAS FAILED TO NOTICE THAT THE ADDITIONS CONFIRMED ARE ON ESTIMATED BASIS ONLY. 7. MECHANICAL ORDER IS EVIDENCED BY ANOTHER FACT ALSO THAT WHILE INTENDING TO IMPOSE MINIMUM PENALTY THE AO HAS IMPOSED 200% PENALTY. 8. I FIND THAT VARIOUS PROPOSITIONS OF LAW DRAWN BY THE APPELLANT ON VARIOUS ASPECTS OF CONCEALMENT LAW ARE CORRECT AND LOGICAL AND THE APPELLANTS CASE IS COVERED BY MOST OF THEM. 6 5.1 I, THEREFORE, DELETE THE PENALTY LEVIED U/S. 271(1) OF THE ACT AMOUNTING TO RS. 19,75,768/-. 7.1 AFTER PERUSING THE AFORESAID FINDINGS, WE FIND THAT LD. CIT(A) HAS DELETED THE PENALTY IN DISPUTE WITHOUT APPRECIATING TH E TOTALITY OF FACTS AND WITHOUT DISCUSSING THE MERIT OF THE CASE AND N OT GIVEN ANY PROPER JUSTIFICATION AND REASONING FOR THE DELET ION OF THE PENALTY IN DISPUTE, WHICH IS CONTRARY TO LAW AND ITSELF ESTABLISH THAT LD. CIT(A) HAS PASSED THE NON-SPEAKING AND LACONIC ORDER, WHICH IN OUR OPINION NEEDS TO BE REMITTED BACK TO THE FILE OF T HE LD. CIT(A) TO DECIDE THE SAME DENOVO. OUR AFORESAID VIEW IS FORTIFI ED BY THE JUDGMENT OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF ASSTT. COMMISSIONER OF INCOME TAX VS. M/S SHUKLA & BR OTHERS DECIDED IN SLP(C) NO. 16466 OF 2009 VIDE ORDER DATED 15.09.2010 WHEREIN, THE HONBLE SUPREME COURT OF INDIA HAS OBSE RVED THAT IT IS TRUE THAT REQUIREMENT OF STATING REASONS FOR JUD ICIAL ORDERS NECESSARILY DOES NOT MEAN A VERY DETAILED OR LENGTHY O RDER, BUT THERE SHOULD BE SOME REASONING RECORDED BY THE LOWER AUTHORITY FOR GRANTING RELIEF TO THE ASSESSEE. THE PURPOSE, AS ALREADY NOTICED, IS TO MAKE THE LITIGANT AWARE OF THE REASONS FOR WHICH THE RELIEF IS DECLINED AS WELL AS TO HELP THE HIGHER COURT IN ASSE SSING THE CORRECTNESS OF THE VIEW TAKEN BY THE LOWER AUTHORITY DE CIDING THE APPEAL OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE ARE UNABLE TO FIND ANY INFIRMITY IN THE ARGUMENTS ADVANCED ON BEHALF OF THE DEPARTMENT, THAT NO REASONS HAVE BEEN RECORDED FOR R EJECTING THE CONTENTIONS RAISED, THIS LEGAL INFIRMITY HAS, IN FA CT, PREJUDICIALLY AFFECTED THE CASE OF THE ASSESSEE BEFORE US. HENCE, WE ARE UNABLE TO SUSTAIN THE ORDER OF THE LD. CIT(A) AND FOR THE AFORE -RECORDED REASONS, WE SET ASIDE THE IMPUGNED ORDER AND REMIT B ACK THE CASE 7 TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO H EAR THE CASE DE NOVO AND PASS APPROPRIATE AND SPEAKING ORDER IN ACCO RDANCE WITH LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 8. WITH REGARD TO ITA NO. 6904/DEL/2015 (AY 2011-12 ) IS CONCERNED, FOLLOWING THE CONSISTENT VIEW AS TAKEN IN AY 2011-12 IN ITA NO. 6903/DEL/2015, AS AFORESAID, THE GROUNDS RAI SED IN AY 2011-12 ALSO STAND REMITTED TO THE FILE OF THE LD. CIT( A) WITH THE SIMILAR DIRECTIONS AS GIVEN IN ASSESSMENT YEAR 2010-1 1 IN ITA NO. 6903/DEL/2015 IN ASSESSEES CASE. 9. IN THE RESULT, BOTH THE REVENUE APPEALS ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 01/02/2018. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 01/02/2018 COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 8