Sh. Pradeep Kumar Garg, Muzaffarnagar V. ITO, Shamli

ITA 947/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91440 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 30-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Keywords: Opportunity of being heard

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 947 /DEL/201 4 (ASSESSMENT YEAR - 200 9 - 10 ) PRADEEP KUMAR GARG, C/O - PREM PRAKASH, ADVOCATE, 183/2, NORTH CIVIL LINES, MUZAFFARNAGAR, PIN - 251001. PAN - AHTPG1097R (APPELLANT) VS ITO, WARD - 1, SHAMLI (RESPONDENT ) APPELLANT BY NONE RESPONDENT BY SH.GAGAN SOOD, SR.DR ORDER BY THE PRESENT APPEAL FILED THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 29.11.2013 OF CIT(A), MUZAFFARNAGAR PERTAINING TO 2009 - 10 ASSESSMENT YEAR O N VARIOUS GROUNDS INCLUDING THAT THE CIT(A) HAS CONFIRMED THE PENALTY O RDER U/S 271(1)(C) WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS FILED BEFORE HIM. 2. AT THE TIME OF HEARING, AN ADJOURNMENT PETITION WAS MOVED. CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE ARGUMENTS BY THE LD. SR.DR IT WAS CONSIDERED APPROPRIATE TO REJECT THE SAME AND PROCEED WITH THE PRESENT APPEAL EX - PARTE QUA THE ASSESSEE APPELLANT ON MERIT. 3. TH E RELEVANT FACTS O F THE CASE ARE THAT THE ASSESSEE RETURNED RS.3, 00,662 / - AS INCOME FROM CONTRACT. THE SAID RETURN WAS SUBJECTED TO SCRUTINY ASSESSMENT RESULTING IN AN ADDITION OF RS. 3,80,000/ - ON THE GROUND THAT RECEIPT OF THE SAID AMOUNT FRO M HINDU KANYA INTER COLLEGE, SHAMLI WAS NOT DISCLOSED BY THE ASSESSEE . THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS DATE OF HEARING 30 .0 6 .2015 DATE OF PRONOUNCEMENT 2 4 .0 7 .2015 I.T.A .NO. - 947/DEL/2014 PAGE 2 OF 3 ADMITTED THAT BY MISTAKE THE SAID AMOUNT WAS NOT INCLUDED. ON ACCOUNT OF THIS FACT, PENALTY U/S 271(1)(C) WAS IMPOSED. 3.1. THE SAID ACTION WAS ASSAILED BY THE ASSESSEE BEFORE THE CIT(A). A PERUSAL OF THE ARGUMENTS FOUND REPRODUCED IN PARA 3 OF THE IMPUGNED ORDER WOULD SHOW THAT IT WAS PLEADED THAT THE PENALTY ORDER WAS PASSED WITHOUT HEARING THE ASSESSEE AS THE RECEIPT OF FIRST NOTICE WAS DISPUTED AND THE SECOND NOTICE THOUGH RECEIVED COULD NOT BE COMPLIED WITH DUE TO MEDICAL REASONS AS SUPPORTED BY MEDICAL CERTIFICATE. AP ART FROM THAT VARIOUS OTHER ARGUMENTS ON FACTS AND PROPOSITIONS OF LAW WERE ADVANCED AS FOUND REPRODUCED IN THE IMPUGNED ORDER SO AS TO JUSTIFY THE QUASHING OF THE PENALTY PROCEEDINGS. CONSIDERING THE ARGUMENTS WHICH ARE EXTRACTED IN PAGE 2 - 6 OF THE IMPU GNED ORDER, THE CIT(A) WAS OF THE VIEW APART FROM THE OTHER REASONS, IT ALSO WEIGHED IN THE MIND OF THE SAID AUTHORITY THAT THE ADDITION NOT HAVING BEEN CHALLENGED IN THE QUANTUM PROCEEDINGS THE ARGUMENTS ADVANCED IN THE PENALTY PROCEEDINGS WERE NOT RELE VANT. THE SAID COURSE ADOPTED BY THE LD.CIT(A) ON FACTS IS NOT CORRECT. ONCE AN ASSESSEE ADMITS A MISTAKE HAVING BEEN COMMITTED IT IS PRESUMED THAT THE ADDITION IN THE QUANTUM WOULD NOT BE ASSAILED. HOWEVER, WHETHER THE EXPLANATION OF MISTAKE WAS BONAF IDE OR NOT WOULD BE CRUCIAL FOR DETERMINING THE ISSUE. IN ORDER TO CONSIDER THE SAME, IT MAY BE EXAMINED WHETHER THE AMOUNT WAS FOUND DE P O S I T E D IN DISCLOSED BANK ACCOUNT OF THE ASSESSEE OR WHETHER THE BANK ACCOUNT ITSELF ALSO WAS NOT DISCLOSED. IT GOES WITH OUT SAYING THE EXPLANATION OFFERED IN THE PENALTY PROCEEDINGS HAS TO BE EXAMINED SEPARATELY AND DISTINCTLY. IT IS A SETTLED LEGAL PROPOSITION THAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE SEPARATE AND DISTINCT. MERELY BECAUSE THE ADDITIONS ARE N OT CHALLENGED IN THE QUANTUM PROCEEDINGS, THIS FACT CAN NOT AUTOMATICALLY LEAD TO THE CONCLUSION THAT THE EXPLANATION OFFERED NECESSARILY HAS TO BE REJECTED. ACCORDINGLY , IN VIEW OF THE ABOVE THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BAC K TO THE FILE TO THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME BY WAY OF A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. I.T.A .NO. - 947/DEL/2014 PAGE 3 OF 3 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 4 T H OF JULY , 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 4 /07 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI