Rohan Juneja, New Delhi V. ITO, Ward- 49(1), New Delhi

ITA 8033/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8951 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR CHOPRA
• Assessee Lawyers: B L GUPTA ITP
• Section: 271(1)(c); 44AD; 274; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO.8033/DEL/2018 ASSESSMENT YEAR: 2014-15 ROHAN JUNEJA, VS. INCOME TAX OFFICER, I-88, KIRTI NAGAR, WARD-49(1), NEW DELHI NEW DELHI (PAN:AFKPJ9548K) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. B.L. GUPTA, I.T.P. REVENUE BY : SH. MANOJ KUMAR CHOPRA, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER PASSED BY THE LD. CIT(A)-17, NEW DELHI, RELATING TO ASSESSMENT YE AR 2014-15 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENALTY U /S 271(L)(C) HAS BEEN RIGHTLY LEVIED BY THE AO. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT PENALTY N OTICE WHICH DOES NOT MENTION SPECIFICALLY ANY PARTICULAR OFFENCE OF CONC EALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS OF INCOME IS OF NO VALUE AND DOES NOT AFFECT THE VALIDITY OF PENALTY NOTICE AND ALSO THE PENALTY ORD ER. 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED THAT THE PENALTY HAS BEEN RIGHTLY LEVIED BY THE AO EVEN WHEN THERE IS NO SPECIFIC SATISFACTION REGARDI NG CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS OF INCOME OF TH E AO IN THE ASSESSMENT ORDER. 2 5.ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN SUSTAINING THE PENALTY EVEN WITHOUT PROVING EITHER CONCEALMENT OF INCOME OR FILING OF INACCURAT E PARTICULARS OF INCOME. 6.ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN SUSTAINING THE PENALTY ORDER EVEN WITHOUT SATISFYING THE CONDITION NECESSARY FOR LEVY OF PENA LTY U/S 271(1)(C). 7.ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN NOT HOLDING THE PENALT Y NOTICE AS INVALID IN THE ABSENCE OF SPECIFIC DEFAULT OF CONCEALMENT OR FILIN G OF INACCURATE PARTICULARS OF INCOME IN THE PENALTY NOTICE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED HIS RETURN OF INCOME DISCLOSING INCOME FROM RETAIL BUSINESS TO TH E TUNE OF RS. 01,45,000/- (08% OF THE GROSS TURNOVER OF RS. 18,12 ,500/-). THE ASSESSING OFFICER NOTICED THAT THERE WAS A CASH DEP OSIT OF RS. 25,99,365/- IN ICICI BANK AND RS. 28,71,310/- IN AXIS BANK ACCO UNT. ACCORDING TO THE ASSESSEE THESE DEPOSITS WERE MADE ON ACCOUNT OF PUR CHASE AND SALE OF CLOTHES. THE ASSESSING OFFICER ASKED THE ASSESSEE A S TO WHY TOTAL CASH RECEIPT OF RS. 53,73,675/- MAY NOT BE TREATED AS TU RNOVER IN ASSESSEES CASE FOR WORKING OUT THE PROFIT UNDER SECTION 44AD OF THE INCOME TAX ACT. AS THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNTS AND ALSO ISSUED SHOW CAUSE NOTICE UNDER SECTION 274 READ WITH SECTION 27 1(1)(C) OF THE ACT AND FINALLY IMPOSED THE PENALTY OF RS. 71,045/- UNDER S ECTION 271(1)(C) OF THE ACT. AGAINST THE PENALTY ORDER, ASSESSEE FILED THE APPEAL BEFORE THE LEARNED FIRST APPELLATE AUTHORITY WHO VIDE HIS IMPU GNED ORDER DISMISSED THE APPEAL FILED BY THE ASSESSEE AND NOW THE ASSESS EE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 3 4. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE REVENUE AUTHORITIES HAS IMPOSED THE PENALTY IN DISPUTE ON ESTIMATION BASIS. HE FURTHER STATED THAT THE PENALTY ON THE BA SIS OF ESTIMATION IS NOT SUSTAINABLE IN THE EYES OF LAW. HE FURTHER STATED T HAT ASSESSEE IS A VERY SMALL BUSINESSMAN AND HAVING VERY LOW INCOME BUSINE SS AND REQUESTED FOR LENIENT VIEW UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 5. THE LEARNED DR RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES, I AM OF THE VIEW THAT THE ASSESSING OFFICER AND THE LEARNED FIRST APPELLATE AUTHORITY HAS LEVIED TH E PENALTY OF RS. 71,045/- MERELY ON ESTIMATION BASIS, WITHOUT BRINGI NG ON RECORD ANY ADVERSE EVIDENCE CONTRARY TO THE AVERMENT OF THE AS SESSEE. ASSESSEE IS VERY SMALL BUSINESSMAN AND PAYING THE TAX @ 08% OF PROFIT ON GROSS TURNOVER UNDER SECTION 44AD OF THE ACT, AND ASSESSE E DID NOT MAINTAIN THE BOOKS OF ACCOUNTS. EVEN OTHERWISE, AO HAS NOT S PECIFICALLY POINTED OUT ANY DEFECT IN THE RETURN OF INCOME FILED BY THE ASS ESSEE REGARDING CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. 7. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, I AM OF THE VIEW THAT THIS IS NOT A FIT CASE FOR LEVY ING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY IS NOT SUSTAINABL E IN THE EYES OF LAW 4 THEREFORE, I DELETE THE PENALTY IN DISPUTE BY CANCE LLING THE IMPUGNED ORDER AND ACCEPTING THE APPEAL FILED BY THE ASSESSE E. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 15/01/2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 15/01/2020 SH COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES