Golden Green Golf & Resort Ltd., Gurgaon V. DCIT, Circle-10(1), New Delhi

ITA 8074/DEL/2019

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0856 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 06-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘B’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI YOGESH KUMAR US, JUDICIAL MEMBER ITA No.8074/Del./2019 (ASSESSMENT YEAR : 2015-16) Golden Green Golf & Resort Ltd., vs. DCIT, Circle 10 (1), Unit No.502, 5 th Floor, Global Foyer, New Delhi Sector 43, Golf Course Road, Gurgaon – 122 002 (Haryana). (PAN : AAACG3219N) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Kamlesh Chaurasia, CA REVENUE BY : Md. Gayasuddin Ansari, Senior DR Date of Hearing : 21.07.2022 Date of Order : 03.08.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (A)-4, New Delhi dated 30.07.2019 pertaining to assessment year 2015-16. 2. The grounds of appeal raised by the assessee read as under :- “1. That the appellant denies confirming liability of penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 by Ld. CIT(A) amount to Rs.21,63,000/- 2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming ITA No.8074/Del./2019 2 penalty on addition of Rs.70,00,000/- on account of Disallowed/Addition under section 41 (1) of Income Tax Act, and penalty imposed under section 271(1)(c) for Rs. 21,63,000/-. 3. That in any case and in any view of the matter, action of rejecting appeal by Ld. CIT(A) on imposing penalty under section 271 (1)(c) amount to Rs. 21,63,000/- on account of disallowed/addition under section 41 (1), is bad In law and against the facts and circumstances of the case.” 3. In this case, penalty under section 271(1)(c) of the Income-tax Act, 1961 (for short ‘the Act’) was levied upon addition of unsecured loan of Rs.70,00,000/- under section 41(1) of the Act. The notice issued to the concerned party had returned unserved. Hence, AO held that the unsecured loan was to be added u/s 41(1) of the Act. AO held that it was remission of cessation of trading liability. Ld. CIT (A) confirmed the same. 4. Against the above order, assessee has come up before us by way of filing an appeal. We have heard both the parties and perused the records. 5. We find that addition u/s 41(1) is done in case of cessation of liability on trading account. In the present case, unsecured loan is being claimed to have ceased to exist and an addition is being done u/s 41(1) by holding it to be cessation of liability. Cessation if at all of an unsecured loan cannot be termed as cessation of a trading liability warranting attraction of section 41(1). We find that though quantum and penalty proceedings are different but when the very foundation of addition is ITA No.8074/Del./2019 3 shaky the same cannot be ignored. The unsecured loan if found to be unexplained, can be added u/s 68. There is no role of section 41(1) in this regard. Its invocation itself is bad in law. Hence when the foundation itself has no legs to stand the penalty cannot survive. Hence we set aside the order of authorities below and delete the penalty. 6. In the result, the assessee’s appeal is allowed. Order pronounced in the open court on this 3 rd day of August, 2022. Sd/- sd/- (YOGESH KUMAR US) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 3.8.2022 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-35, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.