Amit Bhatia, Delhi V. ITO, Ward- 39(4), New Delhi

ITA 7157/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7170 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Bogus purchase; Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.7157/DEL./2017 ASSESSMENT YEAR 2009-2010 SHRI AMIT BHATIA, 5993, NABI KARIM, DELHI 110 006. PAN AGKPB9298B VS. THE INCOME TAX OFFICER, WARD-39(4), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SATYAJEET GOYAL, C.A. FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 0 4 .0 7 .2018 DATE OF PRONOUNCEMENT : 05 .0 7 .2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-20, NEW DELHI, DATED 04 .09.2017, FOR THE A.Y. 2009-2010, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES. 2 ITA.NO.7157/DEL./2017 SHRI AMIT BHATIA, DELHI. 3. LEARNED COUNSEL FOR THE ASSESSEE FILED COPY OF THE NOTICE DATED 18.03.2013 ISSUED FOR LEVY OF PENALTY IN WHICH A.O. HAS MENTIONED HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF EXPLANATION 1, 2, 3, 4 AND 5. HE HAS, THEREFORE, SUBMITTED THAT NOTICE IS INVALID AND BAD IN LAW. THE ISSUE IS COVE RED BY THE ORDER OF ITAT, SMC-BENCH IN THE CASE OF M/S. SCOUT EXIM PVT. LTD., NEW DELHI VS. ITO, WARD-22(3), NEW DELHI, DAT ED 08.03.2018 IN WHICH IN PARAS 2 AND 3 IT WAS HELD AS UNDER: 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE A. O. PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) AN D CONSIDERED THE ISSUE OF BOGUS PURCHASES AND ON SURR ENDER BY ASSESSEE OF 5% OF THE ALLEGED PURCHASES, MADE AD DITION OF RS.6,17,000/-. THE A.O. NOTED IN THE ASSESSMENT ORDER THAT HE WAS SATISFIED THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS AND THEREBY, CONCEALING THE PARTICULARS OF ITS INCOME AND RENDERING ITSELF LIAB LE FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271 (1)(C) OF 3 ITA.NO.7157/DEL./2017 SHRI AMIT BHATIA, DELHI. THE ACT R.W.S. 274 OF THE I.T. ACT, 1961. THE A.O. IN THE PENALTY ORDER HAS MENTIONED THAT HE HAS ISSUED SHOW CAUSE NOTICE DATED 23 RD MARCH, 2016 SEEKING EXPLANATION OF ASSESSEE, COPY OF WHICH IS FILED IN THE APPEAL PAPE RS IN WHICH THE A.O. HAS MENTIONED HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THE A.O. WAS NOT SATIS FIED WITH THE EXPLANATION OF THE ASSESSEE AND LEVIED THE PENA LTY, WHICH IS CONFIRMED BY THE LD. CIT(A). 3. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM O F THE VIEW THAT PENALTY IS NOT LEVIABLE IN THE MATTER . THE A.O. ISSUED PENALTY NOTICE DATED 23 RD MARCH, 2016, UNDER SECTION 274 R.W.S. 271(1)(C) OF THE I.T. ACT, REFERRED TO A BOVE, WHICH IS BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF S ECTION 271(1)(C) OF THE ACT, PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INC OME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. I A M FORTIFIED IN MY VIEW BY DECISION OF HONBLE KARNATAKA HIGH CO URT IN 4 ITA.NO.7157/DEL./2017 SHRI AMIT BHATIA, DELHI. THE CASE OF CIT VS. M/S. SSAS EMERALD MEADOWS 73 TAXMANN.COM 241 (KAR.) (HC) IN WHICH ON THE SAME MA TTER, THE DEPARTMENTAL APPEAL HAS BEEN DISMISSED. THE VIE W OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S. SSAS EMERALD MEADOWS (SUPRA), HAS BEEN CONFIR MED BY THE HONBLE SUPREME COURT BY DISMISSING THE SLP REPORTED IN 73 TAXMANN.COM 284 (SC). IN VIEW OF THE ABOVE DISCUSSION, I SET ASIDE THE ORDERS OF THE AUTHORITI ES BELOW AND CANCEL THE PENALTY. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS IN THE LIGHT OF NOTICE FOR LEVY OF THE PENALTY AND FOLLOWING THE OR DER OF THE TRIBUNAL IN THE CASE OF M/S. SCOUT EXIM PVT. LTD., NEW DELHI VS. ITO, WARD-22(3), NEW DELHI (SUPRA), I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. APPEAL OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 5 ITA.NO.7157/DEL./2017 SHRI AMIT BHATIA, DELHI. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) DELHI, DT. 05 TH JULY, 2018. JUDICIAL MEMBER VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.