Sunit Shah, New Delhi v. ITO, Ward-36(2), New Delhi

ITA 6947/DEL/2017 | 2008-2009
Pronouncement Date: 31-08-2021 | Result: Allowed

Appeal Details

RSA Number 694720114 RSA 2017
Assessee PAN AANPS7190J
Bench Delhi
Appeal Number ITA 6947/DEL/2017
Duration Of Justice 3 year(s) 9 month(s) 10 day(s)
Appellant Sunit Shah, New Delhi
Respondent ITO, Ward-36(2), New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 31-08-2021
Assessment Year 2008-2009
Appeal Filed On 20-11-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI G BEN CH NEW DELHI (THROUGH VIDEO CONFERENCING] BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER AND SHRI KULDIP SINGH JUDICIAL MEM BER ITA NOS. 6946/DEL/2017 [A.Y 2006-07] ITA NOS. 6947/DEL/2017 [A.Y 2008-09] SHRI SUNIT SHAH VS. THE I.T.O PROP. SHAH NAMKEEN WARD 36(2) 188 GOPAL PARK NEW DELHI CHANDER NAGAR NEW DELHI PAN : AANPS 7190 J [APPELLANT] [RESPONDENT] DATE OF HEARING : 31.08.2021 DATE OF PRONOUNCEMENT : 31.08.2021 ASSESSEE BY : SHRI NARENDER CHILLAR ADV. REVENUE BY : SHRI PRAKASH DUBEY C IT- DR ORDER PER N.K. BILLAIYA ACCOUNTANT MEMBER THE ABOVE TWO APPEALS BY THE ASSESSEE ARE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 19 NEW DELHI DATED 29.08.2017 AND 15.09.2017 PERTAININ G TO ASSESSMENT YEARS 2006-07 AND 2008-09 RESPECTIVELY. 2 2. SINCE BOTH THE APPEALS WERE HEARD TOGETHER THES E ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE AND BREVITY. 3. THE SOLITARY GRIEVANCE OF THE ASSESSEE IN BOTH T HE APPEALS IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 1 02 485/- IN A.Y 2006-07 AND RS. 24 49 100/- IN A.Y 2008-09 U/S 271( 1)(C) OF THE INCOME TAX ACT 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. 3. AT THE VERY OUTSET THE LD. COUNSEL FOR THE ASSE SSEE DREW OUR ATTENTION TO THE NOTICES DATED 31.12.2008 FOR A.Y 2 006-07 AND 29.03.2016 FOR A.Y 2008-09 AND POINTED OUT THAT THE NOTICES ARE VAGUE AND ARE NOT DECISIVE IN RESPECT OF THE CHARGE LEVEL LED AGAINST THE ASSESSEE WHETHER THE PENALTY IS BEING LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF INCOME. 4. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 5. WE FIND THAT THE AO INITIATED PENALTY PROCEEDING S BY ISSUING AND SERVING NOTICE U/S 274 R.W.S 271 OF THE ACT DATED 3 1.12.2008 FOR A.Y 2006-07 WHICH READS AS UNDER: 3 NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME TAX ACT-196 THE ITO NEW DELHI TO DATED 31.12.2008 SHRI SUNIT SHAH PROP M/S SHAH NAMKEEN 188 GOPAL PARK CHANDER NAGAR DELHI WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2006-07 IT APPEARS TO ME THAT YOU:- *HAVE WITHOUT REASONABLE CAUSE FAILED TO COMPLY WIT H A NOTICE UNDER SECTION 142(1 )/L43(2) OF THE INCOME TAX ACT 1961 DATED .. HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FU RNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF E XPLANATION 1 2 3 4 AND 5. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT 11. 30 ON 28.04.2016 AND SHOW CAUSE WHY AN ORDER IMPOSING A P ENALTY ON YOU SHOULD NOT BE MADE UNDER SECTION 271 OF THE INCOME TAX ACT 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORT UNITY OF BEING HEARD IN PARSON OR THROUGH AUTHORISED REPRESENTATIV E YOU MAY SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH W ILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE UNDER SECTION 271. ASSESSING OFFICER INCOME TAX OFFICER WARD 38(2) VIKAS BHAVAN NEW DELHI 4 6. IN A.Y 2008-09 THE ASSESSING OFFICER ISSUED NOT ICE U/S 274 R.W.S 2 OF THE ACT DATED 29.03.2016 AS UNDER: NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF T HE INCOME TAX ACT-196 O/O THE ITO WARD 59(5) VIKAS BHAWAN NEW DELHI TO DATED 29.03.2016 SHRI SUNIT SHAH PROP M/S SHAH NAMKEEN 188 GOPAL PARK CHANDER NAGAR DELHI WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2008-09 IT APPEARS TO ME THAT YOU:- *HAVE WITHOUT REASONABLE CAUSE FAILED TO COMPLY WIT H A NOTICE UNDER SECTION 142(1 )/L43(2) OF THE INCOME TAX ACT 1961 DATED .. HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FU RNISHED INACCURATE PARTICULARS OF SUCH INCOME IN TERMS OF E XPLANATION 1 2 3 4 AND 5. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT 11. 30 ON 28.04.2016 AND SHOW CAUSE WHY AN ORDER IMPOSING A P ENALTY ON YOU SHOULD NOT BE MADE UNDER SECTION 271 OF THE INCOME TAX ACT 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORT UNITY OF BEING 5 HEARD IN PARSON OR THROUGH AUTHORISED REPRESENTATIV E YOU MAY SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH W ILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE UNDER SECTION 271. ASSESSING OFFICER WARD 59(5) VIKAS BHAVAN NEW DELHI 7. A BARE PERUSAL OF THE AFOREMENTIONED NOTICES SHO W THAT THE ASSESSING OFFICER HIMSELF WAS NOT AWARE/CERTAIN AS TO WHETHER HE IS ISSUING NOTICE TO INITIATE PENALTY PROCEEDINGS EITH ER FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 8. IN OUR CONSIDERED OPINION THE EXTRACTED NOTI CES ARE VAGUE AND AMBIGUOUS AS THE CHARGE FRAMED BY THE ASSESSING OF FICER IS NOT CLEAR AND IT IS NOT POSSIBLE FOR THE PERSON TO EXPLAIN TH E CHARGE WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FIL ING INACCURATE PARTICULARS OF INCOME. 9. THE HONBLE APEX COURT IN CASE OF CIT VS. SS AS EMERALD MEADOWS - (2016) 73 TAXMANN.COM 248 (SC) WHILE DISMISSING THE SLP FILED BY THE REVENUE QUASHING THE PENALTY BY THE TRIBUNAL AS WELL AS HONBLE HIGH COURT ON THE GROUND OF UNSPECIFIED NOTICE HAS HELD AS UNDER:- 6 SECTION 274 READ WITH SECTION 271(L)(C) OF THE I NCOME-TAX ACT 1961 - PENALTY - PROCEDURE FOR IMPOSITION OF (CONDI TIONS PRECEDENT) - ASSESSMENT YEAR 2009-10 - TRIBUNAL RELYING ON DE CISION OF DIVISION BENCH OF KARNATAKA HIGH COURT RENDERED IN CASE OF CIT V. MANJUNATHA COTTON X GINNING FACTORY [2013] 359 1TR 565/218 TAXMAN 423/35 TAXMANN.COM 250 ALLOWED APPEAL OF AS SESSES HOLDING THAT NOTICE ISSUED BY ASSESSING OFFICER UND ER SECTION 274 READ WITH SECTION 271 (1 )(C) WAS BAD IN LAW AS IT DID NOT SPECIFY UNDER WHICH LIMB OF SECTION 271 (1 )(C) PENALTY PRO CEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PA RTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME - HIGH COURT HELD THAT MATTER WAS COVERED BY AFORESAID DEC ISION OF DIVISION BENCH AND THEREFORE THERE WAS NO SUBSTAN TIAL QUESTION OF LAW ARISING FOR DETERMINATION - WHETHER SINCE THERE WAS NO MERIT IN SLP FILED BY REVENUE SAME WAS LIABLE TO BE DISM ISSED - HELD YES [PARA 2] [IN FAVOUR OF ASSESSEE. 10. HONBLE DELHI HIGH COURT IN CASE OF PR. CI T VS. SAHARA INDIA LIFE INSURANCE COMPANY LTD. (SUPRA) WHILE DECIDING THE I DENTICAL ISSUE HELD AS UNDER: 21. THE RESPONDENT HAD CHALLENGED THE UPHOLDING OF THE PENALTY IMPOSED UNDER SEC. 271(1)(C) OF THE ACT WHICH WAS ACCEPTED BY THE IT AT. IT FOLLOWED THE DECISION OF THE KARNATAK A HIGH COURT IN CIT V. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KAR) AND OBSERVED THAT THE NOTICE ISSUED BY THE AO WOULD BE BAD IN LAW IF IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1) (C) TH E PENALTY 7 PROCEEDINGS HAD BEEN INITIATED UNDER I.E. WHETHER F OR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FURNISHING OF INACC URATE PARTICULARS OF INCOME. THE KARNATAKA HIGH COURT HAD FOLLOWED TH E ABOVE JUDGMENT IN THE SUBSEQUENT ORDER IN COMMISSIONER OF INCOME TAX V. SSA'S EMERALD MEADOWS -73 TAXMANN.COM 241 (KAR) THE APPEAL AGAINST WHICH WAS DISMISSED BY THE SUPREME COURT O F INDIA IN SLP NO. 11485 BY ORDER DATED 5 TH AUGUST 2016. 11. FOLLOWING THE DECISIONS RENDERED IN THE CASES OF CIT VS. MANJUNATHA FACTORY CIT VS. SSAS EMERALD MEADOWS AND PR. CIT VS SAHARA INDIA LIFE INSURANCE COMPANY LTD. (SUPRA) W E ARE OF THE CONSIDERED VIEW THAT WHEN THE NOTICES ISSUED BY THE AO ARE BAD IN LAW BEING VAGUE AND AMBIGUOUS HAVING NOT SPECIFIED UNDE R WHICH LIMB OF SECTION 271(1)(C) OF THE ACT THE PENALTY PROCEEDIN GS INITIATED U/S 271(1)(C) ARE NOT SUSTAINABLE. 12. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE FOLLO WING THE DECISIONS RENDERED BY HONBLE HIGH COURTS DISCUSSED IN THE PRECEDING PARAS AND WITHOUT ENTERING INTO THE OTHER ASPECTS OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT WHEN THE V ERY INITIATION OF THE PENALTY BY WAY OF ISSUANCE OF VAGUE AND AMBI GUOUS NOTICES U/S 271(1)(C) READ WITH SECTION 274 OF THE ACT WITH OUT SPECIFICALLY CHARGING THE ASSESSEE IF HE HAS CONCEALED THE PARTI CULARS OF INCOME 8 OR HAS FURNISHED INACCURATE PARTICULARS OF SUCH INC OME SUBSEQUENT PENALTY PROCEEDINGS ARE NOT SUSTAINABLE HENCE PENA LTY LEVIED BY THE AO AND CONFIRMED BY THE ID. CIT (A) IS NOT SUST AINABLE AND AS SUCH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED . 13. RESPECTFULLY FOLLOWING THE DECISIONS [SUPRA] WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY U/S 271(1)( C) OF THE ACT AMOUNTING TO RS. 1 02 485/- IN A.Y 2006-07 AND RS. 24 49 100/- IN A.Y 2008-09. 14. IN THE RESULT BOTH THE APPEALS FILED BY THE AS SESSEE IN ITA NO. 6946 & 6947/DEL/2017 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.08. 2021 IN THE PRESENCE OF BOTH THE RIVAL REPRESENTATIVES. SD/- SD/- [ KULDIP SINGH ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST AUGUST 2021 9 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER