DCIT, New Delhi V. M/s. Mehrotra Invofin India Pvt. Ltd., New Delhi

ITSSA 11/DEL/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0731 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-03-2015
• Assessment Year: misc
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN PRASHAD
• Assessee Lawyers: ROHIT JAIN
• Keywords: Business income; Search and seizure; Question of law; Difference of opinion; Block assessment
• Section: 260A; 132; 15; 139

Judgement Text

IT (SS) A NO. 11/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T. (SS) A. NO. 1 1 / DEL/201 3 BLOCK PERIOD 01.04.1989 TO 13.01.2000 DCIT, CENTRAL CIRCLE - 2, NEW DELHI ROOM NO. 323, 3 RD FLOOR, ARA CENTRE, NEW DELHI VS. M/S MEHROTRA INVOFIN INDIA PVT LTD., A - 60, NARAINA INDUSTRIAL AREA - I, NEW DELHI 110 028 (PAN: AAACM6793K) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. GUNJAN PRASHAD, CIT(DR) ASSESSEE BY : SH. ROHIT JAIN, ADV. & MS. DEEPASHREE RAO, CA DATE OF HEARING : 31 - 0 3 - 201 5 DATE OF ORDER : 20 - 0 4 - 201 5 ORDER PER H.S. SIDHU, JM REVENUE HAS FILED THIS APPEAL AGAINST THE O RDER DATED 1 . 2 .201 3 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - III, NEW DELHI P ERTAINING TO BLOCK PERIOD 1.4.1989 TO 13.1.2000. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CANCELLING THE PENALTY OF RS. 12,93,085/ - IMPOSED BY THE ASSESSING OFFICER IN VIEW OF THE PROVISIONS OF SECTION 158BFA(2) OF THE INCOME TAX ACT, 1961. 2. THE ORDER OF THE CIT(A ) IS ERRONEOUS AND IS NOT TENABLE ON FACTS IN LAW. IT (SS) A NO. 11/ DEL/ 2013 2 3. THE ASSESSEE CRAVES LAVE TO ADD, ALTER OR AMEND ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION U/S. 132 OF THE I.T. ACT WAS CARRIED OUT IN SHYAM TELECOM GROUP OF CASES ON 13.1.2000. PAPERS RELATING TO THE ASSESSEE WERE ALSO SEIZED DURING THE SEARCH OPERATION. AS THERE WAS NO SEARCH WARRANT IN THE NAME OF THE ASSESSEE COMPANY, HENCE, THE CASE WAS COVERED U/S. 158BD OF THE I.T. ACT, 1961. NOTICE U/S. 158BC, READ WITH SECTION 158BD OF THE I.T. ACT, 1961 WAS ISSUED TO THE ASSESSEE ON 16.11.2000. IN RESPONSE THERETO, THE ASSESSEE COMPANY FILED ITS RETURN DECLARING INCOME OF RUPE ES NIL ON 29.1.2001. THE ASSESSEE COMPANY WAS HAVING BUSINESS OF INVESTMENT AND FINANCE. 4. DURING THE COURSE OF SEARCH OPERATION AT THE CORPORATE OFFICE OF SHYAM GROUP AT A - 60, NARAINA INDUSTRIAL AREA ON 13.1.2000 PAPERS WERE FOUND INDICATING A PLANNIN G TO BOOK LONG TERM CAPITAL GAINS. THE LONG TERM CAPITAL GAIN TO BE BOOKED IN THE CASE OF THE ASSESSEE WAS RS. 19,88,140/ - . IN REPLY TO A QUESTION REGARDING THE NATURE OF THE PROFIT EARNED BY THE ASSESSEE, SH. RAJIV MEHROTRA, CHAIRMAN OF THE GROUP REPLI ED THAT THE COMPANY HAS EAR N ED A LONG TERM CAPITAL GAIN OF RS. 19,88,140/ - DURING THE A.Y. 1999 - 00, BUT IN THE ABSENCE OF DOCUMENTS EVIDENCING THE TRANSACTIONS IN TIME, THE TAX COULD NOT BE PAID AND RETURN NOT FILED IN TIME. HE HAD FURTHER SUBMITTED THAT T HE LONG TERM GAIN TO BE TREATED AS BUSINESS PROFIT BY THE COMPANY AND INCOME TAX AT THE APPLICABLE RATES WILL BE DEPOSITED SHORTLY. KEEPING IN VIEW OF THE REPLY FILED BY THE ASSESSEE THE AO WAS OF THE VIEW THAT THE ASSESSEE WOULD NOT HAVE SHOWN THIS INCOME AS BUSINESS INCOME, HAD THE SEARCH NOT TAKEN PLACE. HE ADDED THE SAME AS UNDISCLOSED INCOME IN THE BLOCK ASSESSMENT OF THE ASSESSEE. ON THE OTHER HAND, FROM THE LEGAL POINT OF VIEW, THE AO IT (SS) A NO. 11/ DEL/ 2013 3 HAD OBSERVED FROM THE REGULAR INCOME TAX RECORDS, THAT THE RETURN WAS FILED BY THE ASSESSEE ON 31.3.2000, I.E. AFTER THE DUE DATE, AS THE DUE DATE OF FILING FOR THE RETURN IN THE CASE OF THE ASSESSEE WAS 31.12.1999. THEREFORE, THE CASE OF THE ASSESSEE WAS COVERED IN TH E AMBIT OF PROVISIONS OF SECTION 158BB(1)(C). ACCORDINGLY, ASSESSEE WAS ASKED TO FILE THE WRITTEN SUBMISSIONS. ASSESSEE FILED ITS WRITTEN SUBMISSIONS. BUT AO DID NOT AGREE WITH THE SUBMISSION OF THE ASSESSEE AND HE COMPLETED THE ASSESSMENT VIDE HIS OR DER DATED 04.3.2002 U/S. 158BD/158BC OF THE I.T. ACT. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 14.3.2002 HAS CONFIRMED THE ADDITIONS. AGAINST THE LD. CIT(A) S ORDER DATED 14.3.2002, ASSES SEE FILED AN APPEAL BEFORE THE TRIBUNAL . THE TRIBUNAL VIDE COMMON ORDER IN THE CASES OF M/S A.T. INVOFIN INDIA PVT. LTD, M/S INTELL INVOFIN INDIA (P) LTD. AND MEHRA INVOFIN INDIA PVT. LTD. IN ITA NO. IT(SS) NO. 69/DEL/2003, IT(SS) NO. 70/DEL/2003 AND ITA (SS) NO. 72/DEL/2003 RESPECTIVELY, BY RELYING ON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF MRS. KUMKUM KOHLI (2005) 276 ITR 589 (DEL) HAD ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ITAT ORDER, REVENUE HAS FILED THE APPEAL BE FORE THE HON BLE HIGH COURT U/S. 260A OF THE I.T. ACT, 1961 AND THE HON BLE HIGH COURT HAS VIDE COMMON ORDER FOR THE FIVE ASSESSES OF THE GROUP ON SIMILAR ISSUE HAS ALLOWED THE APPEAL OF THE REVENUE AND SET ASIDE THE ORDER OF THE ITAT. IN VIEW OF THE ABO VE ORDER OF THE HON BLE HIGH COURT, THE PENALTY PROCEEDINGS U/S. 158BFA(2) OF THE I.T. ACT, 1961 WAS INITIATED VIDE ORDER DATED 10.6.2002 AND PENALTY OF RS. 12,93,095/ - I.E. @100% OF TAX ON UNDISCLOSED INCOME ON THE ASSESSEE COMPANY. 5 . AGGRIEVED BY THE AFORESAID PENALTY ORDER DATED 10 . 6 .201 2 , ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER IT (SS) A NO. 11/ DEL/ 2013 4 DATED 1.2.2013 HAS DELETED THE PENALTY BY ALLOWED THE APPEAL OF THE ASSESSEE . 6. AGAINST THE ORDER OF THE LD. CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 7. AT THE TIME OF HEARING LD. DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND REITERATED ON THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL FILED BY THE REVENUE. 8 . ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ORDER OF THE LD. CIT(A) MAY BE UPHELD. LD. COUNSEL OF THE ASSESSEE IN SUPPORT OF HIS CONTENTION FILED A BRIEF SYNOPSIS, WHICH IS REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE: - THE PRESENT APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) DATED 1 ST FEBRUARY, 2013, DELET ING THE PENALTY OF RS.12,93,085 IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 158BF A(2) OF THE INCOME - TAX ACT, 1961 ('THE ACT'). THE BRIEF FACTS IN RESPECT OF THE AFORESAID ARE AS FOLLOWS: DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 1999 - 2 000, FALLING IN THE BLOCK PERIOD 01.04.1989 TO 13.01.2000, THE ASSESSEE HAD EARNED INCOME FROM TRANSFER OF SHARES IN A COMPANY CALLED M/S. SRU KNITTERS LIMITED, WHICH WAS ACQUIRED IN THE EARLIER YEAR(S). INCOME - TAX RETURN FOR THE ASSESSMENT YEAR 1999 - 2000 , WHICH WAS DUE ON 31ST DECEMBER, 1999 UNDER SECTION 139(1) OF THE ACT, COULD NOT BE FILED DUE TO NON - RECEIPT OF CERTAIN DOCUMENTS IN SUPPORT OF THE TRANSFER OF SHARES. IT (SS) A NO. 11/ DEL/ 2013 5 THE SAID RETURN OF INCOME FOR THE ASSESSMENT YEAR 1999 - 2000 WAS FILED UNDER SECTION 139 (4) OF THE ACT ON 31 ST MARCH, 2000. IT IS A MATTER OF RECORD, WHICH IS UNDISPUTED BY THE REVENUE, THAT THE SHARES OF M/S. SRU KNITTERS LIMITED TRANSFERRED IN THE ASSESSMENT YEAR 1999 - 2000 WERE ACQUIRED IN THE EARLIER YEAR(S) AND WERE DULY SHOWN IN THE A UDITED FINANCIAL STATEMENTS FOR THE YEAR ENDED 31 ST MARCH 1997 AND 31 ST MARCH 1998. IT IS ALSO UNDISPUTED THAT THE CONSIDERATION ON TRANSFER OF SUCH SHARES WERE RECEIVED IN THE REGULAR BANK ACCOUNTS OF THE ASSESSEE. IN FACT, AT THE TIME OF SEARCH CARRIED OUT AT THE PREMISES OF SHYAM GROUP OF COMPANIES ON 13TH JANUARY, 2000, VARIOUS DOCUMENTS, INCLUDING PROVISIONAL FINANCIAL STATEMENTS OF THE ASSESSEE FOR THE YEAR ENDED 31 'MARCH, 1999 WAS FOUND BY THE SEARCH PARTY. IN THE SAID FINANCIAL STATEMENTS GAINS AR ISING ON TRANSFER OF SHARES WERE DULY REFLECTED. HOWEVER, MERELY ON ACCOUNT OF NON - FILING OF RETURN OF INCOME FOR THE ASSESSMENT YEAR 1999 - 2000 BEFORE THE DUE DATE AS PRESCRIBED IN SECTION 139(1) OF THE ACT, INCOME ARISING ON TRANSFER OF SHARES AMOUNTING TO RS.19,59,220 WAS TREATED AS 'UNDISCLOSED INCOME' IN THE BLOCK ASSESSMENT COMPLETED VIDE ORDER DATED 4TH MARCH, 2002. ON FURTHER APPEAL, THE ADDITION MADE WAS CONFIRMED BY THE CIT(A) VIDE ORDER DATED 14TH NOVEMBER, 2002. IT IS HOWEVER, OF UTMOST IMPORTA NCE TO NOTE THAT ON FURTHER APPEAL PREFERRED BY THE ASSESSEE, THE TRIBUNAL VIDE IT (SS) A NO. 11/ DEL/ 2013 6 CONSOLIDATED ORDER DATED 24TH OCTOBER, 2006 PASSED IN THE CASE OF THE ASSESSEE AND OTHER COMPANIES OF THE GROUP DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. ON FURTHE R APPEAL PREFERRED BY THE REVENUE, THE ORDER OF THE TRIBUNAL WAS, HOWEVER, REVERSED BY THE HON'BLE DELHI HIGH COURT VIDE ORDER DATED 29TH NOVEMBER, 2010. THE HIGH COURT, AFTER ADMITTING THE SUBSTANTIAL QUESTION OF LAW RAISED BY THE REVENUE, HELD THAT ON AC COUNT OF NON - FILING OF RETURN BEFORE THE DUE DATE PRESCRIBED IN SECTION 139(1) OF THE ACT, GAINSARISING ON TRANSFER OF SHARES HAS TO BE REGARDED AS 'UNDISCLOSED INCOME'. IN THE AFORESAID FACTS, THE ASSESSING OFFICER VIDE ORDER DATED 19TH MAY, 2011, IMPOSE D PENALTY OF RS.12,93,085 IN RESPECT OF UNDISCLOSED INCOME ASSESSED ON ACCOUNT OF NON - FILING OF RETURN OF INCOME BEFORE THE DUE DATE PRESCRIBED IN SECTION 139(1) OF THE ACT. ON FURTHER APPEAL BY THE ASSESSE, THE CIT(A) VIDE ORDER DATED 1 ST FEBRUARY, 2013 , DELETED PENALTY IMPOSED BY THE ASSESSING OFFICER. THE PERTINENT FINDINGS OF THE CIT(A) ARE FOR THE SAKE OF CONVENIENCE REPRODUCED HEREUNDER: '4.3 NOW LOOKING INTO THE FACTS OF THE PRESENT CASE IT IS OBSERVED THAT: I) THE INVESTMENT IN SHARES (WHICH WER E SOLD DURING THE YEAR AND ON WHICH LONG TERM HAS BEEN EARNED) WERE DULY BEEN REFLECTED IN THE FINANCIAL ACCOUNT OF THE YEAR IN WHICH THEY WERE PURCHASED. IT (SS) A NO. 11/ DEL/ 2013 7 II) THE SALE CONSIDERATION/GAIN WHICH HAS BEEN RECEIVED DURING THE YEAR UNDER CONSIDERATION HAS DUL Y BEEN DEPOSITED IN THE DECLARED BANK ACCOUNT OF THE APPELLANT. III) THE UNAUDITED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WHICH WERE FOUND DURING THE SEARCH, DULY CONTAINS THE RECORDING OF THE TRANSACTION OF SALE OF THESE SHARES, ON WHICH THE CAPITAL GAIN OF RS.19,88,140 HAS BEEN EARNED AND IV) THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 THOUGH WAS NOT FILED BY THE DUE DATE I.E. 31.12.1999, BUT THE SAME WAS FILED ON 31.03.2000 I.E. THE TIME ALLOWED AS PER THE PROVISION OF SECTION 139(4), AND IN THEIR RETURN OF INCOME THE LONG TERM CAPITAL GAIN HAVE DULY BEEN REFLECTED. 4.4 NOW LOOKING INTO THE ABOVE FACTS, SINCE THE SEARCH TOOK PLACE ON 13.01.2000, AND BY THAT TIME THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 WAS NOT FILED BEFORE THE DU E DATE I.E. 31.12.1999, THEREFORE THE AMOUNT OF LONG TERM CAPITAL WAS RIGHTLY ASSESSED AS 'UNDISCLOSED INCOME' WITH THE MEANING OF SECTION 158BB(1)(C). BUT THE FACT THAT SUCH SHARES WERE DULY RECORDED IN UNAUDITED BALANCE SHEET, PROFIT AND LOSS ACCOUNT AN D SALE PROCEEDS HAVE BEEN DEPOSITED IN THE DECLARED BANK ACCOUNT AND ALSO THE INVESTMENT IN SHARES (WHICH WERE SOLD IN THE YEAR UNDER CONSIDERATION) WERE FOUND TO BE DULY RECORDED IN THE REGULAR BOOKS OF ACCOUNTS, IN MY HUMBLE VIEW ALL THESE FACTS DOESN'T CALLS FOR IMPOSITION OF IT (SS) A NO. 11/ DEL/ 2013 8 PENALTY UNDER SECTION 158BFA(2). THE AO WHILE CONSIDERING THE LEVY OF PENALTY SHOULD NOT BEGIN WITH THE PRESUMPTION THAT THE ASSESSEE IS GUILTY OF CONCEALING THE PARTICULARS OF INCOME, THE AO BEFORE LEVYING THE PENALTY MUST BRING ON RECORD THE PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD UNDISCLOSED INCOME WHICH HE WAS CONCEALING OR LIKELY TO CONCEAL. THE LEVY OF PENALTY UNDER SECTION 158BFA(2) IS NOT AN AUTOMATIC ACTION, THE WORDS 'MAY DIRECT' MENTIONED IN SECTION 15 8BF A(2 ) HAS TO BE GIVEN ITS NORMAL MEANING. THE WORD 'MAY' CANNOT BE READ AS 'SHALL'. 4.5 LOOKING INTO THE FACTS OF THE APPELLANT'S CASE, IT IS QUITE LIKELY THAT THE ASSESSEE MIGHT BE WAITING FOR THE REQUISITE DETAILS OF SHARES SOLD AND THIS MAY BE THE GENUINE REASON FOR NOT BEEN ABLE TO FILE THE RETURN OF INCOME BY DUE DATE I.E. 31.12.1999, BUT THE FACT REMAINS THAT HE DID FILE THE RETURN WITHIN THE TIME ALLOWED UNDER SECTION 139(4). FURTHER, WHILE INVOKING THE PENAL PROVISION APART FROM ABOVE THE AO CANNOT OVE RLOOK THIS FACT, THAT THE FINANCIAL STATEMENTS (FOUND DURING THE SEARCH) DID RECORD THE TRANSACTION RELATING TO SHARES ON WHICH CAPITAL GAIN IS EARNED AND DULY BEEN DECLARED IN THE RETURN OF INCOME FILE ON 31.03.2000. 4.6 HERE I WOULD LIKE TO RELY ON THE DECISION OF ITAT, CHENNAI BENCH DATED 07.06.2011 IN THE CASE OF K. RAMAKRISHNAN (HUF) VS. DCIT (IT(SS) NO. 7 OF 2011), WHERE ON THE SIMILAR FACTS THE ITAT HAS HELD PENALTY UNDER SECTION 158BF A(2) IS NOT LEVIABLE IF THE RETURN OF INCOME IS NOT FILED BY THE DUE DATE, BUT THE INCOME BE IT (SS) A NO. 11/ DEL/ 2013 9 ASSESSED AS UNDISCLOSED INCOME WITHIN THE MEANING OF SECTION 158BB(1)(C): 'IF THE ASSESSEE HAD NOT FURNISHED ITS BELATED RETURN IMMEDIATELY AFTER THE SEARCH, THE ASSESSEE WOULD HAVE DEFINITELY OFFERED THE CAPITAL GAINS FOR TAX ATION IN ITS BLOCKRETURN. IF THAT AMOUNT IS OFFERED THROUGH THE BLOCK RETURN THERE WOULD BE NO CASE OF ACTION TO IMPOSE PENALTY. THEREFORE IT IS TO BE SEEN THAT THE ONLY MISTAKE COMMITTED BY THE ASSESSEE IS THAT IT ACTED LITTLE OVER - SMART AND OVER - CAUTIOUS , EVEN THOUGH THE ENDEAVOR OF THE ASSESSEE WAS NOT PRODUCTIVE. ' 4.7 HERE, I WOULD ALSO LIKE TO TAKE STRENGTH FROM THE DECISION DATED 12.11.2008 OF DELHI HIGH COURT IN THE CASE OF CIT VS. HARKARAN DAS VED PAL (ITA NO.1005/2007) DELHI WHERE HON'BLE COURT H AS HELD THAT THE PENALTY IMPOSABLE UNDER SECTION 158BFA(2) IS NOT MANDATORY, AND AO MUST USE HIS JUDICIAL CONSIDERATION BEFORE IMPOSING THE PENALTY. THE FOOT NOTES OF THE SAID DECISION READ AS UNDER: 'WE HAVE ALREADY NOTED THAT BECAUSE THE ASSESSEE HAD SURRENDERED THE AMOUNT BONAFIDE AND FOR THE PURPOSES OF BUYING PEACE AND AVOIDING PROTRACTED LITIGATION, IT DID NOT FOLLOW THAT THERE WAS A DETERMINATION OF UNDISCLOSED INCOME IN THE TERMS STIPULATED IN SECTION 158 BC (C) OR 158 BB (1) OF THE SAID ACT. ONCE THIS IS RECOGNIZED, THERE IS NO QUESTION OF IMPOSING A PENALTY UNDER SECTION 158 BFA (2) OF THE SAID ACT. SO, THOUGH WE HOLD THAT THE TRIBUNAL WAS NOT REQUIRED TO CONSIDER THE QUESTION OF CONCEALMENT O F INCOME AND! OR FURNISHING OF INACCURATE IT (SS) A NO. 11/ DEL/ 2013 10 PARTICULARS OF INCOME, THE TRIBUNAL WAS CORRECT IN ARRIVING AT THE CONCLUSION IN THE EARLIER PART OF ITS DECISION AS NOTED ABOVE THAT THERE WAS NO EVIDENCE RELATABLE TO THE SEARCH DE HORS THE SURRENDER MADE BY THE ASSESSEE AND, THEREFORE, THE PENALTY WHICH HAD BEEN IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 158 BF A (2) WAS LIABLE TO BE CANCELLED.' 4.8 ALSO IT IS A TRITE LAW THAT WHERE TWO VIEWS ARE POSSIBLE ON THE ISSUE, THE PENALTY IS NOT IMPOSABLE IN SUCH C ASES. APPLYING, THIS PRINCIPLE TO THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT AS PER ITAT'S DECISION DATED 03.08.2007 IN THE FACTS OF THE APPELLANT'S CASE THE CAPITAL GAIN ON SHARES IS 'NOT TO BE TREATED AS UNDISCLOSED INCOME', WHEREAS THE HON'BLE DELHI HIGH COURT VIDE THEIR DECISION DATED 29.11.2010, WAS OF THE VIEW THAT SINCE THE RETURN OF INCOME IS NOT FILED BY DUE DATE, THE CAPITAL GAIN IN QUESTION HAS TO BE TREATED AS 'UNDISCLOSED INCOME', FURTHER EVEN AGAINST THE SAID ORDER OF HIGH COURT THE ASSES SEE HAS FILED AN SLP BEFORE THE APEX COURT ON 01.03.2011. THEREFORE IN SUCH AN EVENT AS PER THE SPIRIT OF DECISION OF DELHI HIGH COURT IN THE RECENT CASE OF CIT VS. SARLA FABRICS P. LTD. (ITA 788/2011) DATED 20.07.2012) THE HON'BLE COURT BY RELYING ON THEIR OWN DECISION IN THE CASE OF CLT - IV DELHI VS. IP INDIA P. LTD. (20 - 4 TAXMAN 368) (2012) HAVE HELD THAT: 'WHERE THERE IS A DIFFERENCE OF OPINION EITHER BETWEEN DIFFERENT BENCHES OF TRIBUNAL OR THE HIGH COURTS, WHICH IS FINALLY SETTLED BY THE PENDING JUDGMENT OF THE SUPREME COURT AND ALL NECESSARY FACTS HAVE BEEN DISCLOSED BY THE ASSESSES IN ITS RETURN, THE PE NALTY IS NOT WARRANTED.' IT (SS) A NO. 11/ DEL/ 2013 11 4.9 THUS IN VIEW OF THE ABOVE DISCUSSIONS, I AM OF THE CONSIDERED VIEW THAT IN THE FACTS OF THE APPELLANT'S CASE, THE IMPOSITION OF PENALTY UNDER SECTION 158BFA2) IS NOT ON AUTOMATIC FALL OUT OR MANDATORY, HENCE THE PENALTY LEVIED BY THE AO, 8IS DELETED.' (EMPHASIS SUPPLIED) IT IS RESPECTFULLY SUBMITTED THAT THE AFORESAID ISSUE IS SQUARELY COVERED BY THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT V. AT INVOFIN INDIA PVT. LTD. IN IT(SS)/12/DEV13 DATED 13TH JANU ARY, 2015 [COPY ATTACHED AS ANNEXURE. IN THE SAID THE TRIBUNAL, ON IDENTICAL FACTS, HELD AS UNDER: '7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE UNCONTROVERTED FACTS OF THE CASE AS NOTICED BY THE CIT(A) ARE AS FOLLOWS: - (I) THE INVESTMENT IN SHARES (WHICH WERE SOLD DURING THE YEAR AND ON WHICH LONG TERM HAS BEEN EARNED) WERE DULY BEEN REFLECTED IN THE FINANCIAL ACCOUNT OF THE YEAR IN WHICH THEY WERE PURCHASED. (II) THE SALE CONSIDERATION/GAIN WHICH HAS BEEN RECEIVED DURING T HE YEAR UNDER CONSIDERATION HAS DULY BEEN DEPOSITED IN THE DECLARED BANK ACCOUNT OF THE APPELLANT. (III) THE UNAUDITED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WHICH WERE FOUND DURING THE SEARCH, DULY CONTAINS THE RECORDING OF THE TRANSACTION OF SALE OF THESE SHARES, ON WHICH THE CAPITAL GAIN OF RS.18, 94, 080 HAS BEEN EARNED AND (IV) THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 THOUGHWAS NOT FILED BY THE DUE DATE I.E. 31.12.1999, BUT IT (SS) A NO. 11/ DEL/ 2013 12 THE SAME WAS FILED ON31.03.2000 I.E. THE TIME ALLOWED AS PER THE PROVISION OF SECTION 139(4),AND IN THEIR RETURN OF INCOME THE LONG TERM CAPITAL GAIN HAVE DULY BEEN REFLECTED. 7.1. FROM THE ABOVE FACTS, IT IS CLEAR THAT RETURN OF INCOME WAS NOT FILED WITHIN DUE DATE PRESCRIBED U/S 139(1) AND IN THE MEANWHILE SINCE THE RE WAS A SEARCH, LONG TERM CAPITAL GAIN WAS RIGHTLY ASSESSED AS UNDISCLOSED INCOME WITHIN THE MEANING OF SECTION 158BB(1)(C) OF THE ACT. HOWEVER, TO HOLD THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME AND PENALTY U/S 158BFA(2) IS TO IMPOSED ON FACT S OF THIS CASE IS UNJUSTIFIED. THE PENALTY U/S 158BF A IS NOT AUTOMATIC AND THE ASSESSEE DID NOT HAVE ANY INTENTION TO CONCEAL THE SAID CAPITAL GAIN FOR THE PURPOSE OF TAXATION. THE REASON FOR US TO HOLD THAT THE ASSESSEE DID HAVE ANY INTENTION TO CONCEAL THE CAPITAL GAINS IS EVIDENT FROM THE UNDISPUTED FACT THAT THE INVESTMENT OF THE IMPUGNED SHARES WERE DULY REFLECTED IN THE FINANCIAL STATEMENT OF THE ASSESSEE IN THE YEAR OF PURCHASE AND THE SALE CONSIDERATION/GAIN RECEIVED DURING THE A. Y. 1999 - 2000 WAS DEPOSITED IN THE BANK ACCOUNT WHICH WAS DULY DISCLOSED TO THE INCOME TAX DEPARTMENT. FURTHER, THE UNAUDITED P&L ACCOUNT AND BALANCE SHEET WHICH WERE SEIZED IN THE COURSE OF SEARCH CONTAINED THE RECORDING OF THE TRANSACTION OF THE SALE OF THE SHARES AND RES ULTING CAPITAL GAINS. 7.2 FURTHER, WHETHER LONG TERM CAPITAL GAINS CAN BE TREATED AS 'UNDISCLOSED INCOME' IS DEBATABLE ISSUE. THE ASSESSEE HAD SUCCEEDED IN THE QUANTUM ASSESSMENT BEFORE THE TRIBUNAL. ON FURTHER APPEAL BY THE REVENUE U/S IT (SS) A NO. 11/ DEL/ 2013 13 260A OF THE ACT TH E HON'BLE HIGH COURT REVERSED THE TRIBUNAL'S ORDER. IT HAS BEEN BROUGHT TO OUR NOTICE THAT SLP HAS BEEN FILED BEFORE THE HON'BLE SUPREME COURT (SLP NO. 9018 - 022/2011) AND NOTICE HAS BEEN ISSUED ON THE SAME AND THE MATTER CONTINUES TO BE SUB - JUDICE BEFORE T HE HONBLE SUPREME COURT. THE HON'BLE JURISDICTION HIGH COURT HAS HELD IN THE CASE OF CIT VS. HB. LEASING AND FINANCE CO. LTD. (334ITR 367) THAT THE ISSUE CAN BE SAID TO BE DEBATABLE WHEN SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMITTED AND WHEN QUANTUM PROCE EDING IS DEBATABLE, THE PENALTY CANNOT BE IMPOSED. THE RELEVANT FINDING OF THE HON 'BLE HIGH COURT READ AS FOLLOWS: 'IN THE FACTS OF THIS CASE, WE ARE OF THE OPINION THAT THIS ISSUE IS DEBATABLE. WE SAY SO BECAUSE OF THE REASON THAT NOT ONLY IN THE QUANTU M PROCEEDINGS THE COMMISSIONER OF LNCOME - TAX (APPEALS) HAD DELETED THE ADDITIONS, EVEN WHEN THE TRIBUNAL REVERSED THE ORDER OF THE COMMISSIONER OF LNCOME - TAX (APPEALS) AND THIS COURT ALSO DISMISSED THE APPEAL OF THE ASSESSEE, THE SUPREME COURT HAS REMITTED THE CASE BACK TO THIS COURT AND THE ISSUE STANDS ADMITTED. ONCE THE APPEAL, I.E., I.T.A. NO. 612 OF 2004 PREFERRED BY THE ASSESSEE HAS BEEN ADMITTED THAT WOULD SHOW THAT SUBSTANTIAL QUESTION OF LAW ON THE INTERPRETATION IS INVOLVED. THE ISSUE IS THUS CLEA RLY DEBATABLE. ' 7.3 A SIMILAR VIEW HAS BEEN HELD BY ANOTHER JUDGMENT OF HON'BLE HIGH COURT IN THE CASE OF CIT VS. DEVSONS LOGISTICS (P) LTD. (329ITR 483). THEREFORE, FOLLOWING THE IT (SS) A NO. 11/ DEL/ 2013 14 DICTUM LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASES OF CIT VS. HB. LEASING AND FINANCE CO. LTD. REPORTED IN 334 ITR 367 AND CIT VS. DEVSONS LOGISTICS (P) LTD. REPORTED IN 329 ITR 483, WE HOLD THAT THE PENALTY IS NOT IMPOSABLE ON FACTS AND CIRCUMSTANCES OF THIS CASE. IN VIEW OF THE AFORESAID REASONING, WE UPHOL D THE ORDER OF THE CIT(A) AS CORRECT AND IN ACCORDANCE WITH LAW, AND NO INTERFERENCE IS CALLED FOR. IT IS ORDERED ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ' (EMPHASIS SUPPLIED) IT MAY BE PERTINENT TO MENTION HERE THAT IN THE QUA NTUM PROCEEDINGS, CONSOLIDATED ORDER WAS PASSED BY THE TRIBUNAL DATED 12 TH OCTOBER, 2006 IN THE CASE OF PRESENT ASSESSEE AS WELL AS M/S. AT INVOFIN INDIA PVT. LTD (SUPRA). IT IS THUS RESPECTFULLY SUBMITTED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS S QUARELY COVERED BY THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AT INVOFIN INDIA (SUPRA). BEING SO THE DEPARTMENT APPEAL, IT IS SUBMITTED, CALLS FOR BEING DISMISSED. 9 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER DATED 1.2.2013 , IT IS AN ESTABLISHED PREPOSITION THAT THE ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE TWO ALL TOGETHER DIFFERENT PROCEEDINGS. AN ISSUE MAY CALL FOR AN ADDITIONS IN THE ASSESSMENT PROCEEDINGS, BUT THAT A DDITION IN ITSELF CANNOT BE THE SOLE GROUND FOR IMPOSITION OR LEVY OF PENALTY. FOR THE PURPOSE OF IMPOSING A PENALTY, THE AO HAS TO WALK A LITTLE EXTRA MILE TO PROVE THAT THE ASSESSEE HAS CONCEALED OR LIKELY IT (SS) A NO. 11/ DEL/ 2013 15 TO CONCEAL THE INCOME OR FURNISHED THE INACCURA TE PARTICULAR OF ITS INCOME. 9.1 WE ARE OF THE VIEW THAT BEFORE DISCUSSING THE FACTS OF THE PRESENT CASE AND TO SEE WHETHER THE PENALTY UNDER SECTION 158BFA(2) IS IMPOSABLE, IT IS WORTH RE - ITERATING HERE THE GENERAL RULES TO BE FOLLOWED FOR THE LEVING THE PENALTY AS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF VS. CIT (2007) (291 ITR 519 (SE) AND T. ASHOKE PAI VS. CIT (2007) (292 ITR 11) (S C ). I.E. (I) BOTH THE EXPRESSIONS 'CONCEALMENT OF INCOME' AND ' FURNISHING OF INACCURATE P ARTICULARS' INDICATE SOME DELIBERATION ON THE PART OF THE ASSESSEE, THOUGH THE WORD 'DELIBERATEL Y ' AND THE WORD WILLFULLY' ARE NO LONGER PART OF THE STATUE. (II) MERE OMISSION OR NEGLIGENCE WOULD NOT CONSTITUTE A DELIBERATE ACT OF SUPPRESSIIO VERI OR SU GGESTIO FALSI. (III) PRIMARY BURDEN A/PROOF IS ON THE REVENUE. THE STATUTE REQUIRES SATISFACTION ON THE PART OF THE ASSESSING OFFICER. HE IS REQUIRED TO ARRIVE AT A SATISFACTION SO AS TO SHOW THAT THERE IS PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE H AD CONCEALED THE AMOUNT OR FURNISHED INACCURATE PARTICULARS AND THIS ONUS IS TO BE DISCHARGED BY THE DEPARTMENT. (IV) THE ASSESSING OFFICER WHILE CONSIDERING LEVY OF PENALTY SHOULD CONSIDER WHETHER THE ASSESSEE HAS BEEN ABLE TO DISCHARGE HIS PART OF THE BURDEN. HE SHOULD NOT BEGIN WITH THE PRESUMPTION THAT THE ASSESSEE IS GUILTY. (V) THOUGH PENALTY PROCEEDINGS UNDER THE INCOME - TAX LAW MAY NOT BE CRIMINAL IN NATURE, THEY ARE STILL QUASI - CRIMINAL REQUIRING IT (SS) A NO. 11/ DEL/ 2013 16 THE DEPARTMENT TO ESTABLISH THAT THE ASSESSEE HAS CONCEALED HIS INCOME. 9.2 LD. CIT(A) FURTHER OBSERVED THAT: (I) THE INVESTMENT IN SHARES (WHICH WERE SOLD DUR ING THE YEAR AND ON WHICH LONG TERM HAS BEEN EARNED) WERE DULY BEEN REFLECTED IN THE FINANCIAL ACCOUNT OF THE YEAR IN WHICH THEY WERE PURCHASED. (II) THE SALE CONSIDERATION/GAIN WHICH HAS BEEN RECEIVED DURING THE YEAR UNDER CONSIDERATION HAS DULY BEEN DE POSITED IN THE DECLARED BANK ACCOUNT OF THE APPELLANT. (III) THE UNAUDITED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WHICH WERE FOUND DURING THE SEARCH, DULY CONTAINS THE RECORDING OF THE TRANSACTION OF SALE OF THESE SHARES, ON WHICH THE CAPITAL GAIN OF RS.19,88,140 HAS BEE N EARNED AND (IV) THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 THOUGH WAS NOT FILED BY THE DUE DATE I.E. 31.12.1999, BUT THE SAME WAS FILED ON 31.03.2000 I.E. THE TIME ALLOWED AS PER THE PROVISION OF SECTION 139(4), AND IN THEI R RETURN OF INCOME THE LONG TERM CAPITAL GAIN HAVE DULY BEEN REFLECTED. 9.3 WE FIND CONSIDERABLE COGENCY IN THE OBSERVATIONS OF THE LD. CIT(A) THAT SINCE THE SEARCH TOOK PLACE ON 13.01.2000, AND BY THAT TIME THE RETURN OF INCOME FOR ASSESSMENT YEAR 1999 - 2000 WAS NOT FILED BEFORE THE DUE DATE I.E. 31.12.1999, THEREFORE THE AMOUNT OF LONG TERM CAPITAL WAS RIGHTLY BEEN ASSESSED AS 'UNDISCLOSED INCOME' WITH THE MEANING OF SECTION 158BB(1)(C). BUT THE FACT THAT SUCH SHARES WERE DULY BEEN RECORDED IN UNAUDITED BALANCE SHEET, PROFIT IT (SS) A NO. 11/ DEL/ 2013 17 AND LOSS ACCOUNT AND SALE PROCEEDS HAVE BEEN DEPOSITED IN THE DECLARED BANK ACCOUNT AND ALSO THE INVESTMENT IN SHARES (WHICH WERE SOLD IN THE YEAR UNDER CONSIDERATION) WERE FOUND TO BE DULY RECORDED IN THE REGULAR BOOKS OF ACCOUNTS, HENCE, THESE FACTS DOESN'T CALLS FOR IMPOSITION OF PENALTY UNDER SECTION 158BFA(2). THE A O WHILE CONSIDERING THE LEVY OF PENALTY SHOULD NOT BEGIN WITH THE PRESUMPTION THAT THE ASSESSEE IS GUILTY OF CONCEALING THE PARTICULARS OF INCOME, THE A O BEFORE LEVYI NG THE PENALTY MUST BRING ON RECORD THE PRIMARY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD UNDISCLOSED INCOME WHICH HE WAS CONCEALING OR LIKELY TO CONCEAL. THE LEVY OF PENALTY UNDER 'SECTION 158BFA(2) IS NOT AN AUTOMATIC ACTION, THE WORDS 'MAY DIRECT' ME NTIONED IN SECTION 158BFA(2) HAS TO BE GIVEN ITS NORMAL MEANING. THE WORD 'MAY' CANNOT BE READ AS 'SHALL'. 9.4 WE FIND THAT THE LD. CIT(A) HAS RIGHTLY OBSERVED THAT ASSESSEE MIGHT BE WAITING FOR THE REQUISITE DETAILS OF SHARES SOLD AND THIS MAY BE THE GE NUINE REASON FOR NOT BEEN ABLE TO FILE THE RETURN OF INCOME BY DUE DATE I.E. 31.12.1999, BUT THE FACT REMAINS THAT HE DID FILE THE RETURN WITHIN THE TIME ALLOWED UNDER SECTION 139(4). FURTHER, WHILE INVOKING THE PENAL PROVISION APART FROM ABOVE THE A O CANNOT OVERLOOK THIS FACT, THAT THE FINANCIAL STATEMENTS (FOUND DURING THE SEARCH) DID RECORD THE TRANSACTION RELATING TO SHARES ON WHICH CAPITAL GAIN IS EARNED AND DULY BEEN DECLARED IN THE RETURN OF INCOME FILE ON 31.03.2000. 9.5 WE FURTHER FIND THAT LD. CIT(A) HAS RIGHTLY RELIED ON THE DECISION OF ITAT CHENNAI BENCH DATED 07.06.2011 IN THE CASE OF K. RAMAKRISHNAN (HUF) VS. DCLT (IT( SS ) NO. 7 OF 2011), WHERE ON THE SIMILAR FACTS THE ITAT HAS HELD THAT PENALTY UNDER SECTION 158BFA(2) IS NOT LEVIABLE IF THE RETURN OF INCOME IS NOT FILED BY THE DUE DATE, BUT IT (SS) A NO. 11/ DEL/ 2013 18 THE INCOME BE ASSESSED AS UNDISCLOSED INCOME WITHIN THE MEANING OF SECTION 158BB(1)(C) OF THE I.T. ACT, 1961. 9.6 WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY TAKE THE STRENGTH FROM THE DECISI ON DATED 12.11.2008 OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. HARKARAM DAS VED PAL {117 TAXMAN 398} DELHI WHERE HON'BLE COURT HAS HELD THAT THE PENALTY IMPOSABLE UNDER SECTION 158BFA{2} IS NOT MANDATORY, AND A O MUST USE HIS JUDICIAL CONSIDERATION BEFORE IMPOSING THE PENALTY. THE FOOT NOTES OF THE SAID DECISION READ AS UNDER: 'SECTION 158BFA OF THE INCOME - TAX ACT, 1961 - BLOCK ASSESSMENT IN SEARCH CASES - LEVY OF INTEREST AND PENALTY IN CERTAIN CASES - BLOCK PERIOD 1 - 4 - 1999 TO 6 - 7 - 2000 - WHETHER LE GISLATURE DID NOT INTEND IMPOSITION OF PENALTY UNDER SECTION 158BFA{2} BY ITSELF TO BE MANDATORY; RATHER IT INTENDED SAME TO BE LEFT TO DISCRETION, WHICH OF COURSE HAS TO BE EXERCISED UPON JUDICIAL CONSIDERATIONS OF ASSESSING OFFICER - HELD, YES - WHETHER A PRE - CONDITION FOR IMPOSITION OF PENALTY UNDER SECTION 158BFA{2} IS THAT THERE MUST BE A DETERMINATION OF UNDISCLOSED INCOME BY ASSESSING OFFICER UNDER CLAUSE {C} OF SECTION 158BC - HELD, YES - WHETHER WHERE UNDISCLOSED INCOME HAD BEEN COMPUTED MERELY ON BASIS OF SURRENDER MADE BY ASSESSEE IN COURSE OF BLOCK ASSESSMENT PROCEEDINGS AND DE HORS IT (SS) A NO. 11/ DEL/ 2013 19 SURRENDER, THERE WAS NO EVIDENCE WHICH COULD HAVE BEEN SAID TO HAVE BEEN FOUND AS A RESULT OF SEARCH, 'COMPUTATION' OF UNDISCLOSED INCOME BY ASSESSING OFFICER IN BLO CK ASSESSMENT PROCEEDINGS COULD NOT BE CONSTRUED AS A 'DETERMINATION' OF UNDISCLOSED INCOME CONTEMPLATED UNDER SECTION 158BC{C} OR SECTION 158BB AND NO PENALTY WOULD BE IMPOSABLE UNDER SECTION 158BFA{2} IN SUCH CASE - HELD, YES 9.7 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THAT W HERE TWO VIEWS ARE POSSIBLE ON THE ISSUE, THE PENALTY IS NOT IMPOSABLE IN SUCH CASES. APPLYING, THIS PRINCIPLE TO THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT AS PER ITAT'S DECISION IN T HE FACTS OF THE A SSESSEE S CASE THE CAPITAL GAIN ON SHARES IS 'NOT TO BE TREATED AS UNDISCLOSED INCOME', WHEREAS THE HON'BLE DELHI HIGH COURT VIDE THEIR DECISION DATED 29.11.2010, WAS OF THE VIEW THAT SINCE THE RETURN OF INCOME IS NOT FILED BY DUE DATE, TH E CAPITAL GAIN IN QUESTION HAS TO BE TREATED AS 'UNDISCLOSED INCOME', FURTHER EVEN AGAINST THE SAID ORDER OF HON BLE HIGH COURT THE ASSESSEE HAS FILED AN SLP BEFORE THE APEX COURT ON 01.03.2011. THEREFORE IN SUCH AN EVENT AS PER THE SPIRIT OF DECISION OF HON BLE DELHI HIGH COURT IN THE RECENT CASE OF CIT VS. SARLA FABRICS P. LTD. (ITA 788/2011 DATED 20.7.2012), THE HON BLE COURT BY RELYING ON THEIR OWN DECISION IN THE CASE OF CIT - IV, NEW DELHI VS. IP INDIA P LTD. (204 TAXMAN 368) (2012) HAVE HELD THAT 'W H E RE THERE IS A DIFFERENCE OF OPINION EITHER BETWEEN DIFFERENT BENCHES OF TRIBUNAL OR THE HIGH COURTS, WHICH IS FINALLY SETTLED BY THE PENDING IT (SS) A NO. 11/ DEL/ 2013 20 JUDGMENT OF THE SUPREME COURT AND ALL NECESSARY FACTS HAVE BEEN DISCLOSED BY THE ASSESSES IN ITS RETURN, THE PENALT Y IS NOT WARRANTED. 9 .8 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENTS, W E FIND FORCE IN THE FINDING OF THE LD. CIT(A) THAT THE IMPOSITION OF PENALTY UNDER SECTION 158BFA(2) IS NOT ON AUTOMATIC FALL OUT OR MANDATORY, THEREFORE, IN OUR VIEW, LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY, WHICH IN OUR OPINION DOES NOT NEED ANY INTERFERENCE, ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A) OF DELETING THE PENALTY MADE U/S. 158BFA(2) AND DISMISS THE APPEAL OF THE REVENUE . 10 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 20/ 4 /20 1 5 . SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 20 / 4 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES IT (SS) A NO. 11/ DEL/ 2013 21