Smt. Sudesh Soni, New Delhi V. ACIT, New Delhi

ITSSA 1/DEL/2014

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2212 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 19-05-2016
• Assessment Year: misc
• Appeal Filed On: 07-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEV JYOTY DAS
• Assessee Lawyers: LALITH KRISHNAMURTHY

Judgement Text

1 IT(SS)A NO. 1/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI L. P. SAHU, ACCOUNTA NT MEMBER AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T(SS).A .NO.-1/DEL/2014 (A.Y 1/4/1998 TO 14/10/1 998) SUDESH SONI E-263, GREATER KAILSAH-II NEW DELHI ABFPS8764B (APPELLANT) VS ACIT CIRCLE-23(1) NEW DELHI (RESPONDENT) APPELLANT BY SMT. LALITH KRISHNAMURTHY, C.A RESPONDENT BY SH. DEV JYOTY DAS CIT DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 24/10/2013 PASSED BY CIT(A)-XI, NEW DELHI. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. THE CIT(A) HAD ERRED IN SUSTAINING THE PENALTY IMPOSED OF RS.2,61,180/- U/S 158BFA(2) OF INCOME TAX ACT, 1961 ON VARIOUS FACTUAL AND LEGAL GROUNDS. 2. THAT THE PENALTY OF RS.2, 61,180/- LEVIED BY THE LD. A.O U/S 158BFA (2) OF THE INCOME TAX ACT, 1961 AND SUSTAINED BY TH E CIT(A) IS ARBITRARY, UNJUST AND NOT TENABLE UNDER THE LAW ON VARIOUS FACTUAL AND LEGAL GROUNDS. DATE OF HEARING 19.05.2016 DATE OF PRONOUNCEMENT 06.06.2016 2 IT(SS)A NO. 1/DEL/2014 3. THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PR EJUDICE TO ONE ANOTHER. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THERE WAS A QUANTUM ASSESSMENT WHICH WAS PARTLY CONFIRMED BY TH E ITAT DELHI BENCHES TO THE EXTENT OF 3,80,000/-. THEREFORE, THE PENALTY H AS TO BE LEVIED ON THE AMOUNT OF RS.3,80,000/-. THE TWO FOLD CONTENTION OF THE L D. AR WAS THAT AS THE TRIBUNAL IN ITS ORDER DATED 21/2/2014 (IT(SS)A NO. 13/DEL/2011) HAS SUSTAINED THE ADDITION AT RS.3,80,000/- SO PENALTY WOULD WORK OUT TO 60% OF RS.3,80,000/- WHICH AMOUNTS TO RS.2,28,000/-. THE SECOND CONTENTION OF THE LD. AR WAS PENALTY BE FURTHER REDUCED BY APPLYING T HE GP RATIO OF THE ASSESSEE FOR THE CURRENT YEAR OF 57.82% ON THE AMOUNT SUSTAI NED BY ITAT OF RS.3,80,000/- IN THIS MANNER, PENALTY WOULD WORK OU T TO 60% OF RS.2,19,722/- WHICH COMES INTO RS.1,31,833/- ON THE BASIS OF INCO ME ACCRUED AND NOT ON DEEM BASIS. 4. THE LD. DR SUBMITTED THAT AS THE HONBLE TRIBUNA L HAS CONFIRMED THE ADDITION TO THE TUNE OF RS.3,80,000/- INSTEAD OF 4, 35,300/- THE PENALTY ON THE ACTUAL AMOUNT FINALIZED BY THE ITAT SHOULD BE TAKEN COGNIZANCE AND HE SUPPORTED THE SUBMISSIONS OF THE LD. AR. AS RELATE S TO FURTHER REDUCTION IN PENALTY APPLYING THE GP RATIO, THE LD. DR SUBMITTED THAT THE SAME CANNOT BE DONE AS U/S 150A BFA(2) IS A MANDATORY PENALTY PROV ISION AND THE PENALTY CANNOT BE REDUCED FURTHER. 5. WE HAVE HEARD BOTH THE PARTIES AND SEEN THE ORDE R OF THE PENALTY U/S 158 BFA (2) & CIT(A)S ORDER AS WELL AS ITAT ORDER. IT IS FOUND THAT WHILE DECIDING THE PENALTY APPEAL BY THE CIT(A). THE ITA T TILL THAT TIME HAS NOT CONFIRMED THE QUANTUM APPEAL TO THE EXTENT OF RS.3, 80,000/-. THUS, THE PENALTY WAS LEVIED ON THE ORIGINAL ASSESSMENT ORDER I.E ON RS.4,35,300/-. THEREFORE, THIS MATTER IS REMANDED BACK TO CIT(A) F OR TAKING THE COGNIZANCE OF THE QUANTUM ADDITION TO THE EXTENT CONFIRMED BY THE ITAT AND AFTER TAKING INTO ACCOUNT ALL THE RELEVANT ARGUMENTS OF THE ASSESSEE RELATED TO GP RATIO. 3 IT(SS)A NO. 1/DEL/2014 6. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2016. SD/- SD/- (L. P. SAHU) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 06/06/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 IT(SS)A NO. 1/DEL/2014 DATE 1. DRAFT DICTATED ON 19/05/2016 PS 2. DRAFT PLACED BEFORE AUTHOR 19/05/2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 6 .06.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 06.06.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 5 IT(SS)A NO. 1/DEL/2014