Hitchki Creation Pvt. Ltd., Delhi V. DCIT, Central Circle , Noida

ITA 8196/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9773 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 25-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘C’ NEW DLEHI BEFORE SHRI N.K. CHOUDHRY, JUDICIAL MEMBER AND SHRI DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA Nos. 8193 to 8197/Del/2018 Assessment Years: 2011-12 to 2015-16 Hitchki Creation Pvt. Ltd., C/o M/s. RRA TAXINDIA, D-28, South Extension, Part-1, New Delhi. PAN: AACCH4195C VersuS DCIT, Central Circle, Noida. (Appellant) (Respondent) Appellant by :Dr.Rakesh Gupta, Ld. Adv. Sh. DeepashGarg, Ld. Adv. Respondent by : Ms.SapnaBhatia,Ld.CIT/DR Date of hearing : 01.09.2022 Date of order : 28.09.2022 ORDER PER N.K. CHOUDHRY, J.M. These appeals have been preferred by the Assessee against the common order dated 30.10.2018, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-IV, Kanpur (in short “Ld. Commissioner”), u/s. 250(6) of the Income-tax Act, 1961 (in short ‘the Act’) for the assessment years 2011-12 to 2015-16. ITA Nos. 8193 to 8197/Del/2018 2 2. As the issue and facts involved in the appeals under consideration are exactly similar, therefore for the sake of brevity, we are deciding the same by this composite order by referring the facts and issue involved in ITA no. 8193/Del/2018. 3. In the instant case the Assessing officer vide Assessment order dated 28-12-2016, in addition to making of the additions on account of unexplained investment u/s 68 of the Act and disallowance of interest on loan, also initiated the penalty proceedings u/s 271A of the Act for non-production and non- maintenance of books of account. The Assessing officer ultimately vide penalty order dated 30-06-2017imposed the penalty of Rs. 25,000/- u/s 271A of the Act for non-compliance of the provisions of Section 44AA of the Act by observing that non-compliance of the various notices given during the course of assessment proceedings as well as penalty proceedings makes it clear that Assessee company has nothing to submit/controvert and it has deliberately failed to maintain its books of account as per statutory requirement of section 44AA of the Act. 4. On appeal, the learned Commissioner affirmed the imposition of penalty against which the Assessee is in appeal before us. 5. At the outset the learned AR of the Assessee in addition to raising other contentions, mainly emphasized that the penalty can only be initiated for non-maintenance of books of account, but not for non-production. Further, as per replies dated 13.09.2016, 22.09.2016, 03.12.2016 and 21.12.2016 filed before the AO during the Assessment proceedings, the Assessee again and again written ITA Nos. 8193 to 8197/Del/2018 3 at the bottom of the reply “that all the books of account along with statutory documents are produced for verification”, therefore, this fact goes to show that the books of account were produced before the Assessing Officer during the assessment proceedings itself, thus no penalty is leviable. 6. On the contrary, the learned DR by drawing our attention to the orders of the authorities below submitted that the Assessee failed to show any cogent evidence to prove it has duly kept and maintainedbooks of account as per mandate of Section 44AA of the Act. If the Assessee has maintained the books of account then to controvert the findings of the authorities below, could have produced before the Bench. Therefore, the appeals filed by the Assessee are liable to be dismissed. 7. Heard the parties and perused the material available on record. The controversy revolves around the maintenance of books of account, on which the Assessee allegedly claimed that it has duly maintained as per the provisions of section 44AA of the Act andeven produced before the Assessing officerduring the Assessment proceedings itself and still can produce if required, whereas the authorities below while passing the orders including the impugned order, have categorically given concurrent findings that the Assessee failed to maintain and produce the books of account. Considering the rival contentions of the parties, the magnitude of the issue involved and to cut short the litigation,we deem it appropriate to delete the penalty under consideration, subject to production of books of account as vehemently claimed to be maintained by the Assessee, before the Assessing officer. ITA Nos. 8193 to 8197/Del/2018 4 Accordingly the Assessing officer is directed, only to verify the fact as to whether the books of account have been maintainedu/s 44AA of the Act by the Assessee, but not to ponder the veracity of the books of account. 8. In the result, appeals filed by the Assessee stands allowed in the aforesaid terms. Order pronounced in the open court on 28.09.2022. Sd/- Sd/- (DR. B.R.R. KUMAR) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *aks/- ITA Nos. 8193 to 8197/Del/2018 5 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT Assistant Registrar ITAT New Delhi Draft dictated Draft placed before author Approved Draft comes to the Sr.PS/PS Order signed and pronounced on Date of uploading on the website File sent to the Bench Clerk Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order.