Devendra Sharad Kumar Damle, Delhi V. JCIT, Range-61, New Delhi

ITA 7271/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8911 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 271D

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: B NEW DELHI BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.7271/DEL./2017 ASSESSMENT YEAR: 2008-09 SHRI DEVENDRA SHARAD KUMAR DAMLE, C-70, 1 ST FLOOR, INDERPURI, DELHI VS. JCIT, RANGE-61, NEW DELHI PAN :AEQPD4446R (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 10 TH NOVEMBER, 2017, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-20, NEW DELHI, [IN SHORT T HE LEARNED CIT(A)], FOR ASSESSMENT YEAR 2008-09, IN RELATION T O PENALTY UNDER SECTION 271D OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED AS UN DER: 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL) I S BAD IN- LAW. APPELLANT BY SHRI PANCHAM SETHI, FCA RESPONDENT BY SHRI RAJESH KUMAR, SR.DR DATE OF HEARING 16.03.2021 DATE OF PRONOUNCEMENT 16.03.2021 2 ITA NO.7271/DEL./2017 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE CIT(A) ERRED IN PASSING ORDER WITHOUT PROVIDING PROPER OPP ORTUNITY OF HEARING. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE CIT(A) ERRED IN NOT ADJUDICATING THE VARIOUS GROUNDS OF AP PEAL ON MERIT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER WAS B AD-IN-LAW, WITHOUT JURISDICTION AND BARRED BY LIMITATION AND C IT(A) ERRED IN NOT HOLDING SO. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) ERRED IN CONFIRMING PENALTY OF RS.14,00,000/- IMPOS ED BY THE ASSESSING OFFICER U/S 271D OF THE INCOME TAX ACT, 1 961. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUN D OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT TH E TIME OF HEARING OF APPEAL. THE AFORESAID GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO EACH OTHER. 2. AT THE OUTSET BEFORE US, THE LEARNED COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE APPEAL HAS BEEN DECIDED EX-PARTE WITHOUT CONSIDERING SUBMISSIONS OF THE ASSESSEE AND, THEREF ORE, SAME MAY BE RESTORED BACK TO THE FILE OF THE LEARNED CIT (A) FOR DECIDING AFRESH AFTER CONSIDERING THE SUBMISSIONS AND MATERI ALS TO BE SUBMITTED BY THE ASSESSEE. HE ALSO SUBMITTED THAT I N EARLIER ASSESSMENT YEAR 2007-08, THE TRIBUNAL IN IDENTICAL CIRCUMSTANCES HAS RESTORED THE APPEAL OF THE ASSESS EE TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING AFRESH. 3. ON THE CONTRARY, THE LEARNED DR OBJECTED AND SUBMI TTED THAT THE ASSESSEE WAS PROVIDED ENOUGH OPPORTUNITIES , HOWEVER, THE ASSESSEE FAILED TO MAKE REPRESENTATION BEFORE T HE LEARNED CIT(A). THEREFORE, THE LEARNED CIT(A) CANNOT BE FAU LTED FOR PASSING THE ORDER BASED ON THE INFORMATION AVAILABLE BEFORE HER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND TH AT IN THE ASSESSMENT YEAR 2007-08 ALSO, THE LEARNED CIT(A) PA SSED EX- PARTE ORDER WITHOUT THE BENEFIT OF ASSESSEES SUBMI SSIONS WHICH 3 ITA NO.7271/DEL./2017 HAS BEEN RESTORED BACK TO THE FILE OF THE LEARNED C IT(A) BY THE TRIBUNAL IN ITA NO. 7270/DEL./2017, OBSERVING AS UN DER: (B) THE ONLY ISSUE IN DISPUTE IN THIS APPEAL IS RE GARDING PENALTY OF RS. 14,00,000/- IMPOSED U/S 271D OF INCOME TAX ACT. VIDE ORDER DATED 29.09.2016 ORDER U/S 271D OF INCOME TAX ACT ( IT ACT FOR SHORT;) WAS PASSED BY JOINT COMMISSIONER OF INCOME TAX (JCIT, FOR SHORT) LAYING PENALTY OF RS. 14,00,000/-; WHICH WAS CONFIRMED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [LD. CIT(A), FOR SHORT] VIDE IMPUGNED ORDER DATED 10/11/2017. AGGRIE VED, THIS APPEAL BEFORE US HAS BEEN FILED BY THE ASSESSEE AGA INST AFORESAID IMPUGNED APPELLATE ORDER DATED 10/11/2017; WHICH WA S PASSED BY LD. CIT(A) EX-PARTE WITHOUT THE BENEFIT OF ASSESSEE S SUBMISSIONS. AT THE TIME OF HEARING BEFORE US, BOTH SIDES SUBMITTED BEFORE US THAT THE ISSUE IN DISPUTE BE SET ASIDE TO THE FILE OF LD . CIT(A) FOR FRESH ORDER AS PER LAW SO THAT THE ASSESSEE GETS AN OPPOR TUNITY TO MAKE SUBMISSIONS BEFORE LD. CIT(A). (C) IN VIEW OF THE FOREGOING, AND AS BOTH SIDES HA VE AGREED TO THIS, WE SET ASIDE THE IMPUGNED ORDER DATED 10/11/2017 OF LD. CIT(A) AND RESTORE THE ISSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR FRESH ORDER AS PER LAW, AFTER PROVIDING REASONABLE OPPORT UNITY TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO ENSURE STEADF AST COMPLIANCES IN PROCEEDINGS BEFORE LD. CIT(A) IN ACCORDANCE WITH LAW. 5. RESPECTFULLY FOLLOWING THE FINDING OF THE TRIBUNAL (SUPRA), THE ORDER OF THE LEARNED CIT(A) IS SET ASIDE AND THE AP PEAL IS RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING AFRESH AS, PER LAW, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH OF THE PARTIES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SUCHITRA KAMBLE) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 TH MARCH, 2021. RK/- (DTDS) 4 ITA NO.7271/DEL./2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI