Smt. Vidhu Aggarwal, New Delhi V. ACIT, New Delhi

ITSSA 35/DEL/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8802 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 01-11-2010
• Assessment Year: misc
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: O P SAPRA
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T(SS).A NO. 35/DEL/10 BLOCK PERIOD 1.4.85 TO 19.11.96 SMT. VIDHU AGGARWAL, A-22, FRIENDS COLONY EAST, NEW DELHI. VS. ACIT CIRCLE 22 (1) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI O.P. SAPRA, ADVOCATE RESPONDENT BY: SHRI MANISH KUMAR, SR. DR ORDER PER RAJPAL YADAV, JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF AO DATED 30 TH JUNE, 2010 PASSED U/S 158BFA OF THE INCOME TAX ACT 1961. THE GRIEVANCE OF THE ASSESSEE IS THAT LD. AO HAS ERRED IN IMPOSING A PENALTY OF RS. 9,90,768/- U/S 158 BFA OF THE INCOME TAX ACT. IT(SS)A NO. 35/DEL/2010 BLOC K PERIOD 1.4.85 TO 19.11.96 2 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/ S 132 (1) WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESS EE SITUATED AT A-22, FRIENDS COLONY, NEW DELHI, ON 20 TH MARCH, 1996. THE ASSESSMENT ORDER U/S 158 BC WAS PASSED ON 29 TH APRIL 1997. THIS ORDER WAS SET ASIDE BY THE TRIBUNAL IN IT(SS)A NO. 127/D/97 VIDE ORDER 23. 11.2004. THE AO HAS PASSED A FRESH ASSESSMENT ORDER ON 28 TH MARCH, 2006. AGAINST THIS ORDER ASSESSEE WENT IN APPEAL BEFORE ITAT AND ITAT HAS DECIDED THE APPEAL OF ASSESSEE BEARING NO. IT(SS) NO. 122/D/200 6 VIDE ITS ORDER DATED 23 RD JULY, 2008. THEREAFTER THE AO HAS PASSED THE ASSTT . ORDER ON 31.12.2009 AND DETERMINED THE TAXABLE INCOME OF ASS ESSEE AT 13,51,281/-. HE INITIATED A PENALTY PROCEEDING U/S 158BFA AND IMPOSED A PENALTY OF RS. 9,90,768/- VIDE ORDER DATED 30 TH JUNE, 2010. 3. LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT SEARCH IN THE CASE OF ASSESSEE WAS CONDUCTED ON 20 TH MARCH, 1996. THERE WAS NO PROVISION FOR VISITING AN ASSESSEE WIT H PENALTY U/S 158 BFA FOR THE PERIOD IN BETWEEN 30 TH JUNE, 1995 UPTO 1 ST DAY OF JANUARY, 1997. HE TOOK US THROUGH CLAUSE F OF SUB SECTION 3 OF SECTION 158 BFA FOR BUTTERACING HIS CONTENTION. LD. DR WAS UNABLE T O CONTROVERT THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE. IT(SS)A NO. 35/DEL/2010 BLOC K PERIOD 1.4.85 TO 19.11.96 3 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. CLAUSE F OF SUB SECTION (3) OF SECTION 158 BFA READ AS UNDER: - (3) NO ORDER IMPOSING A PENALTY UNDER SUB SECTION ( 2) SHALL BE MADE (F) IN RESPECT OF SEARCH INITIATED UNDER SECTION 13 2 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONE D UNDER SECTION 132A AFTER THE 30 TH DAY OF JUNE, 1995 BUT BEFORE THE 1 ST DAY OF JANUARY, 1997. 5. A BARE PERUSAL OF THE ABOVE PROVISION MAKES IT C LEAR THAT FOR THE INTERVENING PERIOD OF 30 TH JUNE, 1995 UPTO 1 ST DAY OF JANUARY, 1997 IF ANY SEARCH WAS CONDUCED ON AN ASSESSEE U/S 132 OF THE A CT OR BOOKS OF ACCOUNTS, OTHER DOCUMENTS, ETC. REQUISITIONED U/S 1 32A THEN NO PENALTY UNDER SUB SECTION 2 OF 158 BFA IS IMPOSABLE. IN THE CASE OF ASSESSEE SEARCH WAS CARRIED OUT IN MARCH, 1996 WHICH FALLS I N BETWEEN THE PERIOD EXCLUDED IN CLAUSE F. THEREFORE, NO PENALTY IS IM POSABLE UPON THE ASSESSEE. 6. IN VIEW OF THE ABOVE APPEAL OF THE ASSESSEE IS A LLOWED AND PENALTY ORDER IS QUASHED. ORDER PRONOUNCED IN THE OPEN COURT ON 8.11.2010. SD/- [A.K. GARODIA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8.11.2010 IT(SS)A NO. 35/DEL/2010 BLOC K PERIOD 1.4.85 TO 19.11.96 4 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT