Krishna Devi (Indivudual), New Delhi V. ACIT, Circle-44(1), New Delhi

ITA 8016/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1364 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST S DATED PASSED
• Keywords: Question of law; Set aside
• Section: 271(1)(c); 142(1); 274; 148

Judgement Text

1 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 8016/DEL/20 18 (A.Y. 2009-10) I.T.A. NO. 8017/DEL/20 18 (A.Y. 2010-11) I.T.A. NO. 8018/DEL/20 18 (A.Y. 2011-12) I.T.A. NO. 8019/DEL/20 18 (A.Y. 2012-13) KRISHNA DEVI H. NO. 823, PALAM VIHAR MORE, BIJWASAN, NEW DELHI-110061 PAN : BXWPD1061J APPELLANT VS . ACIT CIRCLE-44(1), NEW DELHI (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST ORD ERS DATED 09.10.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 15, DELHI FOR ASSESSMENT YEARS 2009-10, 2010-11, 2011-12 AND 2012-13 RESPECTIVELY. 2. IN ALL THESE APPEALS GROUNDS ARE IDENTICAL THERE FORE, WE REPRODUCING THE GROUNDS FOR A.Y. 2009-10 AS UNDER: ITA NO 8016 /DEL/2018 (A.Y. 2009-10) 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE A ND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APP EAL OF THE ASSESSEE. APPELLANT BY SH. B.L.GUPTA, ITP RESPONDENT BY SH. S.L.ANURAGI, SR.DR DATE OF HEARING 09.09.2019 DATE OF PRONOUNCEMENT 11.09.2019 2 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN SUSTAINING THE PEN ALTY UNJUSTIFIABLY LEVIED BY THE AO U/S 271(1)(C) BY HOLDING THAT HON'BLE SUPREM E COURT JUDGMENT IN THE CASE OF SSA'S EMERALD MEADOWS REPORTED IN 386 ITR 1 3 AND MANJUNATH ETC WOULD NOT HELP THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENAL TY LEVIED U/S 271(L)(C) BY THE AO WAS CORRECT AND JUSTIFIED EVEN IN THE PRESEN CE OF SSA'S EMERALD MEADOWS AND MANJUNATH JUDGMENTS AND ALSO OTHERS AS GIVEN BEFORE THE CIT(A). 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENAL TY NOTICE ISSUED BY THE AO U/S 271(L)(C) WAS LEGAL AND THEREFORE THE CONTENTIO N OF THE ASSESSEE THAT PENALTY NOTICE INFACT WAS ILLEGAL AND BAD IN LAW IT SELF, IN VIEW OF THE AFORESAID TWO JUDGMENTS AND THEREFORE THE PENALTY ORDER WAS N OT SUSTAINABLE. 5. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE RELIANCE ON SEVERAL JUDGMENTS OF HON'BLE SUPREME COURT, HIGH CO URTS AND TRIBUNALS IN DISMISSING THE APPEAL OF THE ASSESSEE ARE MISPLACED SINCE THEY ARE EITHER NOT APPLICABLE IN THE PRESENT CASE OR RENDERED PRIOR TO THE AFORESAID TWO JUDGMENTS. 6. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT THERE IS CONCEALMENT OF INCOME EVEN WHEN THE INCOME ASSESSED IS THE SAME AS RETURN ED. 7. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENAL TY FOR CONCEALMENT OF INCOME HAS BEEN RIGHTLY LEVIED EVEN WHEN THE PENALT Y NOTICE HAS BEEN ISSUED BOTH FOR CONCEALMENT OF INCOME AND ALSO FOR FILING INCORRECT PARTICULARS OF INCOME WHICH IS BAD IN LAW SINCE INAPPROPRIATE WORD S HAVE NOT BEEN STRUCK OF. 8. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 3 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THE PENALT Y PROCEEDINGS HAVE BEEN RIGHTLY INITIATED EVEN WHEN THE PENALTY PROCEEDINGS HAVE NOT BEEN LEGALLY INITIATED EVEN AFTER THE AMENDMENT IN THE ACT. 9. WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) -15 WAS INCORRECT AND UNJUSTIFIED IN CONFIRMING PENALTY U/S 271(L)(C) WIT HOUT PROVING EITHER THE CONCEALMENT OR FILING OF INACCURATE PARTICULARS OF INCOME AND HENCE THE ORDERS OF AUTHORITIES BELOW NEEDS QUASHING. 3. THE BRIEF FACTS OF A.Y. 2009-10 ARE TAKEN HEREIN AFTER. THE ASSESSING OFFICER HAD INFORMATION THAT DURING THE RELEVANT F. Y. 2008-09, THE ASSESSEE RECEIVED RENTAL INCOME OF RS. 6,00,000/-, AS HIS SH ARE OF INCOME FROM HOUSE PROPERTY. SINCE THE INCOME EXCEEDED MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME TAX, THE ASSESSEE WAS LIABLE T O FILE RETURN U/S 139, HOWEVER IT WAS ALSO REVEALED TO ASSESSING OFFICER T HAT NO ITR WAS FILED BY THE ASSESSEE FOR THE RELEVANT A.Y. 2009-10. ACCORDINGLY , THE ASSESSING OFFICER ISSUED NOTICE U/S 148 ON 29.03.2016, AFTER OBSERVIN G THAT RENTAL INCOME AMOUNTING TO RS. 6,00,000/- HAS ESCAPED ASSESSMENT. THE ASSESSEE WAS DULY SERVED WITH THE NOTICE U/S 148 AND HE WAS ASKED TO SUBMIT HIS RETURN WITHIN 30 DAYS OF RECEIPT OF NOTICE. HOWEVER, EVEN AFTER R ECEIPT OF THE NOTICE U/S 148, NO RETURN WAS FILED BY THE ASSESSEE WITHIN THE TIME LIMIT SPECIFIED IN THE NOTICE OR EVEN AFTERWARDS. THE ASSESSEE OBJECTED TO THE IS SUE OF NOTICE U/S 148 AND THE OBJECTIONS WERE DISPOSED OFF BY THE ASSESSING O FFICER. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE DATED 24.06.2016, U /S 142(1) OF INCOME TAX ACT TO THE ASSESSEE ASKING HIM TO APPEAR ON 05.07.2016 AND ALSO SUBMIT HIS RETURN. IN RESPONSE, THE ASSESSEE FILED THE ONLINE ITR ON 30.06.2016, IN WHICH THE TOTAL INCOME AMOUNTING TO RS. 4,58,717/- WAS DE CLARED. IN THE TOTAL INCOME THE AMOUNT OF INCOME UNDER HOUSE PROPERTY ESCAPING ASSESSMENT WAS DULY OFFERED TO TAX, AFTER CLAIMING BENEFIT OF DEDUCTION @ 30%. SINCE THE ENTIRE RENTAL INCOME, WHICH WAS RECEIVED BY THE ASSESSEE, AS PER INFORMATION IN POSSESSION 4 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) OF THE ASSESSING OFFICER WAS FULLY DISCLOSED/DECLAR ED BY THE ASSESSEE IN HIS ITR, THE ASSESSMENT WAS COMPLETED AT THE SAME FIGURE OF TOTAL INCOME AMOUNTING TO RS. 4,58,717/-. IN THIS MANNER, THE RETURNED INCOME WAS ACCEPTED BY THE ASSESSING OFFICER. SUBSEQUENTLY, THE ASSESSING OFFI CER LEVIED PENALTY U/S 271(1)(C), AFTER TREATING THAT THE AMOUNT OF RS. 4, 58,717/- REPRESENTED CONCEALED INCOME. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSE SSEE. 5. THE LD. AR SUBMITTED THAT NOTICE U/S 274 READ WI TH SECTION 271(1)(C) OF THE INCOME TAX ACT DATED 26.08.2016 DID NOT SPECIFY THE PARTICULAR CHARGE OF CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THE LD. AR FURTHER SUBMITTED THAT IN ASSESSEES OWN CASE FOR A .Y. 2013-14 BEING ITA NO. 8020/DEL/2018 ORDER DATED 03.06.2019, THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE. BESIDES THAT THE LD. AR ALSO RELIED UPON THE DECISION OF HONBLE APEX COURT IN CASE OF CIT VS. SSAS EMERALD MEADOWS (201 6) 73 TAXMAN.COM 241(KAR) CONFIRMING THE HONBLE KARNATAKA HIGH COUR TS DECISION IN CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KAR) AS WELL AS HONBLE DELHI COURT DECISION IN CASE OF PR. CIT VS. M/S SAH ARA INDIA LIFE INSURANCE CO. LTD. (ITA NO. 475/2019 ORDER DATED 02.08.2019). 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER, PEN ALTY ORDER AND THE ORDER OF THE CIT(A), BUT COULD NOT DISTINGUISH THE DECISIONS RELIED UPON BY THE LD. AR. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. FIRST OF ALL, IN THE NOTICE IS SUED U/S 274 R.W.S 271(1)(C) OF THE INCOME TAX ACT, 1961, THERE WAS NO SPECIFIC CHA RGES AS RELATES TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. 5 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) SECTION 271(1)(C) OF THE ACT WAS NOT CORRECTLY INVO KED BY THE ASSESSING OFFICER. THE CIT(A) ALSO OVERLOOKED THE ACTUAL INTENTION OF THE PENALTY PROCEEDINGS WHICH CLEARLY SET OUT THAT WHEN THERE IS INACCURATE PARTICULARS OR CONCEALMENT ON PART OF THE ASSESSEE, THEN THE SAME SHOULD BE PR OCEEDED. BUT IN THE PRESENT CASE, THE ASSESSEE HAS DISCLOSED ALL THE FACTUAL AS PECTS BEFORE THE ASSESSING OFFICER WHICH CANNOT BE STATED THAT THERE WAS CONCE ALMENT OF PARTICULARS OF INCOME OR THE ASSESSEE FURNISHED INACCURATE PARTICU LARS OF INCOME. THE ASSESSEE HAS ALSO FILED ALL THE DETAILS DURING THE ASSESSMENT PROCEEDINGS. FROM THE NOTICE, IT CAN BE SEEN THAT THE ASSESSING OFFIC ER WAS NOT SURE UNDER WHICH PROVISIONS OF SECTION 271 OF THE INCOME TAX ACT, 19 61, THE ASSESSEE IS LIABLE FOR PENALTY. THE ISSUE IS SQUARELY COVERED BY THE DECIS ION OF THE HON'BLE SUPREME COURT IN CASE OF M/S SSA EMERALD MEADOWS. THE EXTR ACT OF THE HONBLE KARNATAKA HIGH COURT IN M/S. SSA EMERALD MEADOWS A RE AS UNDER WHICH WAS CONFIRMED BY THE HONBLE APEX COURT: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SE CTION 274 READ WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHE R FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDER ED IN THE CASE OF COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON A ND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG MENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBS TANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COU RT. THE APPEAL IS ACCORDINGLY DISMISSED. BESIDES THAT IN ASSESSEES OWN CASE FOR A.Y. 2013-1 4 THE SAME ISSUE HAS BEEN DECIDED BY THE TRIBUNAL DECIDED THIS ISSUE IN FAVOU R OF THE ASSESSEE. THE 6 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) HONBLE JURISDICTIONAL HIGH COURT IN CASE OF SAHARA INDIA LIFE INSURANCE CO. LTD. (SUPRA) HELD AS UNDER: 21. THE RESPONDENT HAD CHALLENGED THE UPHOLDING OF THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT, WHICH W AS ACCEPTED BY THE ITAT. IT FOLLOWED THE DECISION OF THE KARNATAKA HIGH COURT I N CIT V. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KAR) AND OBSE RVED THAT THE NOTICE ISSUED BY THE AO WOULD BE BAD IN LAW IF IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) THE PENALTY PROCEEDINGS HAD BEEN INITIATED UNDER I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE KARNATAKA HIG H COURT HAD FOLLOWED THE ABOVE JUDGMENT IN THE SUBSEQUENT ORDER IN COMMISSIO NER OF INCOME TAX V. SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 241(KAR) , THE APPEAL AGAINST WHICH WAS DISMISSED BY THE SUPREME COURT OF INDIA I N SLP NO. 11485 OF 2016 BY ORDER DATED 5 TH AUGUST, 2016. 22. ON THIS ISSUE AGAIN THIS COURT IS UNABLE TO FIN D ANY ERROR HAVING BEEN COMMITTED BY THE ITAT. NO SUBSTANTIAL QUESTION OF LAW ARISES. THUS, THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT IS SET ASIDE. ALL THE FOUR APPEALS OF THE ASSESSEE ARE ALLOWED AS ALL THE APPE ALS ARE IDENTICAL. 8. IN RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11/09/2019 *BINITA* 7 ITA NO. 8016 TO 8019/DEL/2018 (K RISHNA DEVI) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 0 9 .0 9 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .0 9 .2019 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