Charu Bajaj, Noida V. ITO, Ward-1(2), NOida

ITA 781/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7516 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISHA MITTAL
• Keywords: Unexplained investment
• Section: 271(1)(c); 274; 144

Judgement Text

1 ITA NO. 781/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F+SMC NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. NO. 781/DEL/201 9 (A.Y. 2009-10) CHARU BAJAJ, 2302, ATS GREENS-II, PLOT A-58, SECTOR 50, NOIDA 201307 PAN : AGHPB 4931 E (APPELLANT) VS ITO, WARD 1(2), NOIDA. ( RESPONDENT) APPELLANT BY MS. ASHISHA MITTAL, C.A. RESPONDENT BY SHRI PRADEEP SINGH GAUTAM, SR. D.R. ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31.08.2018 PASSED BY THE COMMISSIONER OF INCOME TAX [APPEALS]- I, NEW DELHI FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. FIRST APPELLATE AUTHORITY HAS GROSSLY ERRED IN DISMISSING THE APPEA L ON THE GROUND THAT NECESSARY EVIDENCE REGARDING PAYMENT OF THE STATUTO RY FEE FOR THE ADMISSION OF APPEAL WAS NOT PROVIDED BY THE ASSESSEE WHICH IS AGAINST THE FACTS, UNWARRANTED AND BAD AT LAW. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE PENALTY OF RS.2,87,000/- U/S 271(1)(C) OF THE ACT LEVIED ON CO NCEALED INCOME IS UNWARRANTED AND BAD AT LAW AS THE LD. ASSESSING AUT HORITY HAS NOT RECORDED ANY SATISFACTION IN HIS ASSESSMENT ORDER TO THE EFF ECT THAT THE APPELLANT HAS CONCEALED ITS INCOME. DATE OF HEARING 27.01.2020 DATE OF PRONOUNCEMENT 30.01.2020 2 ITA NO. 781/DEL/2019 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE PENALTY ORDER PASSED BY THE LD. ASSESSING AUTHORITY U/S 271(1)(C) OF THE ACT AND UPHELD BY LD. FIRST APPELLATE AUTHORITY IS INVALID AND BAD AT LAW AS FR OM THE NOTICE ISSUED U/S 274 R.W.S 271 OF THE ACT, IT IS NOT DISCERNIBLE AS TO WHETHER PENALTY PROCEEDINGS WERE INITIATED FOR CONCEALMENT OF INCOM E OR FURNISHING INACCURATE PARTICULARS THEREOF AND THEREFORE, IMPUGNED ORDERS PASSED U/S 271(1)(C) OF THE ACT DESERVES TO BE QUASHED. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD AO AND THE FIRST APPELLATE AUTHORITY HAS PASSED THE ORDERS UNDER SEC TION 271(1)(C) OF THE ACT WITHOUT GIVING A REASONABLE OPPORTUNITY TO THE ASSE SSEE AS ALL THE NOTIES WERE SENT TO THE INTEREST ADDRESS. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE PENALTY LEVIED BY THE LD ASSESSING AUTHORITY IS AGAINST THE FACT, INJUDICIOU S AND BAD AT LAW AS THE ASSESSEE HAS NEITHER CONCEALED PARTICULARS OF THE C ASE NOR FURNISHED THE ACCURATE PARTICULARS. 6. THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, AL TER OR WITHDRAW ANY GROUNDS OF APPEAL. 3. THE ASSESSEE DURING PART OF THE YEAR WAS EMPLOY ED WITH AN IT SOLUTIONS COMPANY AND WAS EARNING SALARY ON MONTHLY BASIS. BESIDES THIS THE ASSESSEE ALSO HAS SOME INTEREST INCOME FROM BAN K. THE ASSESSMENT WAS COMPLETED 05.12.2016 ON TOTAL INCOME OF RS. 11, 59,000/- UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. THE ONLY A DDITION WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF PR OPERTY INCLUDING STAMP DUTY FOR RS. 23,18,000/-. PENALTY PROCEEDING FOR CONCEALMENT OF INCOME UNDER SECTION 271(1)(C) OF THE INCOME TAX AC T, 1961 WERE INITIATED ON 05.12.2016 FOR THE ADDITION OF RS. 19,48,000/-. THE PENALTY ORDER WAS PASSED EX-PARTE AS THE ASSESSEE HAS NOT FILED ANY R EPLY NOR APPEARED BEFORE THE ASSESSING OFFICER. THUS, AN ORDER OF PENALTY D ATED 06.06.2017 WAS PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF I. T. ACT, 1961 IMPOSING A PENALTY OF RS. 2,87,000/- FOR NOT COMPLYING WITH TH E REQUIREMENTS OF LAW. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED ONLINE APPEAL 3 ITA NO. 781/DEL/2019 BEFORE THE CIT(A). HOWEVER, ONLY FORM 35 IS AVAILAB LE ON THE WEBSITE OF THE DEPARTMENT WHICH WAS DOWNLOADED BY THE OFFICE AND P LACED ON RECORD. AS THE ASSESSEE DID NOT FURNISH THE NECESSARY EVIDENCE REGARDING THE PAYMENT OF THE STATUTORY FEE FOR ADMISSION OF ITS APPEAL, T HE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) AT NO POINT OF TIME, POINTED TO THE ASSESSEE THAT THERE IS TECHNICAL OBJECTION TO A DMIT THE APPEAL SUCH AS STATUTORY FEE IS NOT PAID. THUS, THE LD. AR SUBMITT ED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE CIT(A) AND THE ISSUE CONTESTED BEFORE THE CIT(A) BE DECIDED ON MERIT AFTER GIVING HEARING TO THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE QUANTUM HAS BEEN DECI DED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL VIDE ORDER DATED 16.08.201 9 IN ITA NO. 816/DEL/2018 A.Y. 2009-10). 6. THE LD. DR SUBMITTED THAT THE ASSESSEE WAS GIVEN AMPLE OPPORTUNITY, BUT THE SAME WAS NOT AVAILED BY THE AS SESSEE BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). THUS, THE LD. DR SUBMITTED THAT THE APPEAL OF THE ASSESSEE BE DISMISSED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE PENALTY ORDER AS WE LL AS THE ORDER OF THE CIT(A), WE FIND AMPLE OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE TO CONTEST THE MATTER/ISSUES BEFORE THE REVENUE AUTHORITIES. T HE CIT(A) ALSO DID NOT DECIDE THE ISSUES ON MERIT BUT RATHER ONLY HARPED T HAT THE STATUTORY FEE WAS NOT PAID AND HENCE DISMISSED THE APPEAL. SINCE THE QUANTUM IS DELETED BY THE ASSESSING OFFICER AFTER THE MATTER WAS REMANDED BACK TO THE ASSESSING OFFICER BY THE TRIBUNAL AS STATED BY THE LD. AR, TH EREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE CASE ON MERIT. NEEDLESS TO SAY THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF N ATURAL JUSTICE. THE APPEAL 4 ITA NO. 781/DEL/2019 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF JANUARY, 2020 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: /01/2020 PRITI YADAV, SR. PS * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 781/DEL/2019 DATE OF DICTATION 2 9 . 01 .20 20 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29 . 01 .20 20 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER .01 .20 20 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS .01.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .01.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 3 0 .01.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 3 0 .01.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 3 0 .01.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK