Iqbal Singh Dahiya, Gurgaon V. ITO, Ward-2(2), Gurgaon

ITA 7586/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7305 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Salary income; TDS
• Section: 271(1)(c); 143(3); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 7 586 /DEL/201 8 [ASSESSMENT YEAR: 2 0 10 - 11 ] SHRI IQBAL SINGH DAHIYA VS. THE I .T. O C/O CA M R SAHU & ASSOCIATES WARD 2(2) HOUSE NO.651, FIRST FLOOR, GURGAON SECTOR 10 - A , GURGAON PAN: AA PPD 6473 K [APPELLANT] [RESPONDENT] DATE OF HEARING : 2 4 . 0 4 .201 9 DATE OF PRONOUNCEMENT : 2 6 .0 4 .201 9 ASSESSEE BY : SHRI M.R. SAHU , C A. REVENUE BY : SHRI S.L. ANURAGI, SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] 1, GURGAON DATED 2 8 .0 9 .2018 PERTAINING TO A.Y 20 10 - 11 . 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 [HERE INAFTER REFERRED TO AS 'THE ACT'] . 3. ROOTS FOR LEVY OF PENALTY LIE IN THE ASSESSMENT ORDER DATED 27 . 06 .20 17 FRAMED U/S 143(3) R.W.S. 147 OF THE ACT. ON THE BASIS OF INFORMATION AVAILABLE IN THE POSSESSION OF THE DEPARTMENT, NOTICE U/S 148 OF THE ACT WAS ISSUED, PURSUANT TO WHICH THE ASSESSEE FILED RETURN OF INCOME DECLARING RS. 12,95,170/ - AS HIS INCOME. THE ASSESSING OFFICER WAS OF THE FIRM BELIEF THAT HAD THE NOTICE U/S 148 OF THE ACT BEEN NOT ISSUED, THE ASSESSEE WOULD NOT HAVE FILED HIS RETURN OF INCOME AND ACCORDINGLY, INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 4. DURING PENALTY PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT SALARY INCOME OF THE ASSESSEE WAS SUBJECTED TO TDS AND ALSO RENTAL INCOME. THE ASSESSING OFFICER NOTICED T HAT TOTAL TDS WAS RS. 2,24,654/ - WHEREAS THE TOTAL TAX PAID BY THE ASSESSEE WAS RS. 3,01,328/ - . THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT ON THE DIFFERENCE OF 3 AMOUNT OF TDS AND TAX PAID BY THE ASSESSEE AMOUNTING TO RS.76,674/ - . 5 . THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. 6 . BEFORE ME, THE LD. AR VEHEMENTLY STATED THAT RETURNED INCOME AND ASSESSED INCOME ARE SAME AND, THEREFORE , IT CANNOT BE SAID THAT ANY PART OF INCOME WAS CONCEALED , ON WHICH THE ASSE SSEE SOUGHT TO EVADE TAX. 7 . PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER . 8 . I HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. I FIND THAT THERE IS NO DISPUTE THAT THE SALARY INCOME AND RENTAL INCOME WERE SUBJECTED TO TDS. IT IS TRUE THAT THE ASSESSEE DID NOT FILE HIS RETURN OF INCOME AND ONLY PURSUANCE TO NOTICE ISSUED U/S 148 OF THE ACT, THE ASSESSEE FILED HIS RETURN OF INCOME. IT IS EQUALLY TRUE THAT THE ASSESSMENT HAS BEEN FRAMED ON THE RETURNED INCOME ITSELF THOUGH THE NOTICE U/S 148 WAS ISSUED ON THE INFORMATION 4 THAT THE ASSESSEE HAS MADE AGREEMENT FOR PURCHASE OF IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS. 10.21 LAKHS WITH SHWETA ESTATE PVT LTD. I FIND THAT NO ADDITION HAS BEEN MADE IN THIS RESPECT AS THE ASSESSING OFFICER HIMSELF IS SATISFIED WITH THE REPLY OF THE ASSESSEE. IN MY CONSIDERED OPINION, WHEN THE ASSESSED INCOME AND THE RETURNED INCOME ARE SAME, I DO NOT FIND ANY REASON TO HOLD THAT THE ASSESSEE H A S CONCEALED ITS PARTICULARS OF INCOME , SINCE BOTH THE INCOMES WERE SUBJECTED TO TDS. I DO NOT FIND THIS TO BE A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. I, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS. 76,674/ - . 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 7 586 /DEL/201 8 IS ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 26 . 0 4 .201 9 . S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 26 T H APRIL, 2019. VL/ 5 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER