Sh. Navneet Jhanb, New Delhi V. ACIT, Faridabad

ITA 756/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7169 (ITAT-DELHI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 11-07-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 11-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-I: NEW DELHI BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER ITA NO.:- 756/DEL /2016 ASSESSMENT YEAR: 2001-02 SHRI NAVNEET JHANB C/O, M/S. RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-1, NEW DELHI 110 049 PAN AAYPJ3980G VS. ACIT CENTRAL CIRCLE-1 FARIDABAD. (APPELLANT) (RESPONDENT) O R D E R PER P.K. BANSAL, A. M. THIS APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF THE LD. CIT(A) DATED 31.12.2015. THE ONLY ISSUE INV OLVED IN THIS APPEAL RELATES TO THE SUSTENANCE OF THE PENALTY AMOUNTING TO RS. 2,44,940/- BY THE LD. CIT(A), IMPOSED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT. 2. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BE LOW. I NOTED THAT IN ASSESSEE BY : SHRI ROHIT KUMAR GUPTA , ADV. DEPARTMENT BY : SHRI DEEPAK GARG, SR. D R DATE OF HEARING 11/07 /2016 DATE OF PRONOUNCEMENT 11 /07 /2016 ITA NO. 756/DEL/2016 2 THIS CASE THE AO LEVIED THE PENALTY ON THE ASSESSEE @200% OF THE TAX SOUGHT TO BE EVADED AMOUNTING TO RS. 4,89,880/- BY OBSERVING AS UNDER :- THE ASSESSEE HAS KEPT CHANGING THE EXPLANATION, RA THER HE KEPT ON SUBMITTING WRONG FACTS/MISLEADING FACTS BOTH BEF ORE THE AO AND THE CIT(A), THEREFORE, IT IS A FIT CASE FOR IMP OSITION OF PENALTY @ 200%. IN VIEW OF THE ABOVE I FIND IT REASONABLE T O IMPOSE A PENALTY OF RS. 4,89,880/- BEING 200% OF THE TAX SOU GHT TO BE EVADED AS CALCULATED BELOW :- I) TAX AS PER ASSESSED INCOME : RS. 3,50,269/- II) TAX AS PER RETURNED INCOME : RS. 1,05,329/- III) TAX SOUGHT TO BE EVADED : RS. 2,44,940/- IV) MINIMUM PENALTY LEVIABLE @ 100% : RS. 2,44,940/- V) MAXIMUM PENALTY LEVIABLE @ 200%: RS. 4,89,880/- 3. WHEN THE MATTER WENT BEFORE THE LD. CIT(A), TH E LD. CIT(A) REDUCED THE PENALTY TO 100% OF THE TAX SOUGHT TO BE EVADED AMOUNTING TO RS. 2,44,940/-. 4. PROVISION OF SECTION 271(1)(C) EMPOWERS TH E AO TO IMPOSE PENALTY IF IN THE COURSE OF THE PROCEEDINGS UNDER T HE INCOME TAX ACT THE AO IS SATISFIED THAT ANY PERSON HAS CONCEALED THE P ARTICULARS OF HIS INCOME & FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THUS THERE ARE TWO DIFFERENT CHARGES IN RESPECT OF WHICH PENAL TY HAS TO BE IMPOSED. THE CHARGE OF CONCEALING THE PARTICULARS OF INCOME IS DIFFERENT FROM FURNISHING OF INACCURATE PARTICULARS OF THE INCOME. EXPLANATION I IS APPLICABLE IN CASE OF CONCEALMENT OF PARTICULARS OF INCOME. IN THE CASE OF CONCEALMENT OF PARTICULARS OF INCOME, THE ONUS IS ON THE ASSESSEE. IN ITA NO. 756/DEL/2016 3 VIEW OF APPLICABILITY OF EXPLANATION I TO PROVE THA T THE ASSESEE HAS NOT CONCEALED THE PARTICULARS OF INCOME WHILE IN THE C ASE OF FURNISHING THE INACCURATE PARTICULARS OF INCOME THE ONUS LIES ON T HE REVENUE TO PROVE THAT THE ASSESEE HAS FURNISHED INACCURATE PARTICULA RS OF INCOME. THUS THERE MUST BE SPECIFIC CHARGE IN RESPECT OF WHICH T HE PENALTY U/S 271(1) (C) CAN BE IMPOSED IN THE CASE OF THE ASSESSEE. IT IS APPARENT FROM THE PENALTY ORDER THE AO IS NOT AWARE OF FOR WHICH CHAR GE HE HAS IMPOSED THE PENALTY WHETHER IT IS FOR FURNISHING INACCURAT E PARTICULARS OR FOR CONCEALING THE PARTICULARS OF INCOME. UNTIL AND UNL ESS THERE IS A SPECIFIC CHARGE BEING LEVIED ON THE ASSESEE, I AM OF THE VIE W NO PENALTY U/S 271(1)(C) CAN BE IMPOSED ON THE ASSESSEE. MY AFORE SAID VIEW IS DULY SUPPORTED BY THE DECISION OF GUJARAT HIGH COURT IN T HE CASE OF NEW SORATHIA ENGG. CO. VS. CIT 282 ITR 642 (GUJARAT), H ONBLE KARNATAKA HIGH COURT HAS ALSO TAKEN THE SIMILAR VIEW IN THE C ASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565. SIN CE IT IS NOT DISCERNIBLE FROM THE ORDER PASSED BY THE AO FOR WHI CH SPECIFIC CHARGE THE PENALTY HAS BEEN IMPOSED U/S 271(1)(C), I THER EFORE DELETE THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT. ITA NO. 756/DEL/2016 4 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2016. (P.K. BANSAL) ACCOUNTANT MEMBER DATED: 11/07/2016 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI