Akshay Jain, Ghaziabad V. DCIT, Circle-1, Ghaziabad

ITA 7224/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7759 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 14-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: DINESH KUMAR ADV ISHITA GUPTA
• Keywords: Unexplained cash credit
• Section: 271(1)(c); 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO. 7224/DEL/2018 ASSESSMENT YEAR: 2014-15 AKSHAY JAIN, CH. NO. 206-207, ANSAL SATYAM RDC RAJ NAGAR, GHAZIABAD, UTTAR PRADESH. PAN NO. AEXPJ2344D VS DCIT CIRCLE-1 GHAZIABAD, UTTAR PRADESH. APPELLANT RESPONDENT ASSESSEE BY SH. DINESH KUMAR, ADV. ISHITA GUPTA, CA REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(APPEALS), GHAZIABAD DATED 31.08.2018 FOR AY 2014-15. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT T HE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN AN ASSES SMENT MADE U/S 143(3) OF THE ACT THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT AT AN INCOME OF RS. 41,20,100/- BY MAKIN G AN ADDITION OF RS. 20,19,500/- BY TREATING THE LONG TE RM CAPITAL GAIN FROM SALE OF SHARES SHOWN BY THE ASSESSEE OF RS. 20 ,19,500/- AS DATE OF HEARING 11.04.2019 DATE OF PRONOUNCEMENT 24.04.2019 2 ITA NOS. 7224/DE L/2018 UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT AND THERE BY ASSESSING THE INCOME AT RS. 40,20,100/- IN PLACE OF RS. 21,00 ,600/- SHOWN BY THE ASSESSEE. 3. THEREAFTER, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 4. ON APPEAL, THE LD.CIT(A) OBSERVED THAT DURING TH E COURSE OF ASSESSMENT THE AO MADE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAINS OF RS. 20,19,500/- BY ALLOWING BENEFIT OF RS. 10 LAKHS FOR INCOME DISCLOSED BY THE ASSESSEE UNDER IDS. THE CI T(A) OBSERVED THAT ON VERIFICATION MADE DURING APPEAL PROCEEDINGS REVEALED THAT ASSESSEE HAD NOT DECLARED RS. 10 LAKHS TOWARDS LONG TERM CAPITAL GAINS IN THE IDS, THEREFORE, HE ENHANCE THE INCOME OF THE ASSESSEE BY RS. 10 LAKHS AND ALSO IMPOSED PENALTY U/S 271(1) (C) OF THE ACT FOR FAILURE TO SUBSTANTIATE THE CLAIM MADE IN THE R ETURN OF INCOME. 5. BEFORE ME, THE AR OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL VIDE ITS ORDER DATED 17.01.2019 IN ITA NO. 4199/DEL/2018 IN AY 2014-15 DELETED THE ADDITION OF RS. 30,19,500/- MADE U/S 68 READ WITH SECTION 115BBE ON ACCOUNT OF SALE OF EQUITY SHARES AND HENCE, SUBMITTED THAT IN VIEW OF THE ABOVE FINDINGS OF THE TRIBUNAL PENALTY LEVIED U/S 2 71(1)(C) DOES NOT SURVIVE AND REQUIRES TO BE DELETED. 6. THE DR COULD NOT CONTROVERT THE ABOVE SUBMISSION OF THE AR OF THE ASSESSEE. I FIND THAT IT IS NOT IN DISPUTE THAT ADDITION OF RS. 30,19,500/- MADE U/S 68 READ WITH SECTION 115BBE ON ACCOUNT OF 3 ITA NOS. 7224/DE L/2018 SALE OF EQUITY SHARES WAS DELETED BY THE TRIBUNAL V IDE ITS ORDER DATED 17.01.2019 PASSED IN ITA NO. 4199/DEL/2018 IN AY 2014- 15. THEREFORE, THE VERY BASIS FOR LEVY OF PENALTY NOT SURVIVING THE LEVY OF PENALTY ALSO DOES NOT SURVIVE. I, THEREFOR E, DELETE THE LEVY OF PENALTY ON ADDITION OF RS. 30,19,500/- MADE U/S 68 READ WITH SECTION 115BBE OF THE ACT AND ALLOW THE APPEAL OF A SSESSEE. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24/04/2019 SD/- (N.S. SAINI) ACCOUNTANT MEMBER DATED: 24.04.2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NOS. 7224/DE L/2018 DATE OF DICTATION 16/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16/04/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 24.4.19 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 24.4.19 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 25.4.19 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.4 .19 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER