OPINDER SINGH MARWAH, NEW DELHI v. ACIT, CIRCLE- 62(1), NEW DELHI

ITA 7105/DEL/2017 | 2013-2014
Pronouncement Date: 23-03-2021 | Result: Allowed

Appeal Details

RSA Number 710520114 RSA 2017
Assessee PAN AAKPM6200G
Bench Delhi
Appeal Number ITA 7105/DEL/2017
Duration Of Justice 3 year(s) 3 month(s) 26 day(s)
Appellant OPINDER SINGH MARWAH, NEW DELHI
Respondent ACIT, CIRCLE- 62(1), NEW DELHI
Appeal Type Income Tax Appeal
Pronouncement Date 23-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 23-03-2021
Assessment Year 2013-2014
Appeal Filed On 27-11-2017
Judgment Text
PAGE | 1 INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH E: NEW DELHI ] BEFORE SHRI KUL BHARAT JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA. NO.7105/DEL/2017 (ASSESSMENT YEAR:2013-14) SH.OPINDER SINGH MARWAH E34 LAJPAT NAGARIII NEW DELHI 110 024. PAN: AAKPM6200G VS. ACIT CIRCLE: 12 (1) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARUN KISHORE C. A.; REVENUE BY: MS. AMAN PREET SR. D.R.; DATE OF HEARING 23/03/2021 DATE OF PRONOUNCEMENT 23/03/2021 O R D E R PER PRASHANT MAHARISHI A. M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)20 NEW DELHI DATED 26.09.2017 WHEREIN THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961 (THE ACT) OF RS.1 39 050/- BY THE ACIT CIRCLE 62(1) NEW DELHI FOR ORDER DATED 28.09.2016 PASSED UNDER SECTION 271(1)(C) OF THE ACT WAS CONFIRMED. THE ASSESSEE IS CHALLENGING THE ABOVE LEVY OF THE PENALTY ON SEVERAL GROUNDS RELATING TO THE ISSUE OF JURISDICTION AS WELL AS ON THE MERITS OF THE CASE. 2. BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF PROVIDING TAXIS ON HIRE. ON 25.09.2013 ASSESSEE FILED ITS RETURN OF INCOME OF RS.86 04 850/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE ASSESSEE HAS SHOWN NET PROFIT OF RS.54 59 382/- ON GROSS RECEIPT OF RS.10.16 CRORES RESULTING INTO NET PROFIT RATIO OF RS.5.37 % . PAGE | 2 DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THAT THE ASSESSEE HAS DEPOSITED RS 1839000/- IN CASH IN BANK ACCOUNT. OUT OF THE ABOVE CASH DEPOSIT ASSESSEE COULD NOT PROVE THAT RS.4 50 000/- IS RECEIVED BY THE ASSESSEE ON SALE OF CAR. THEREFORE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND ORDER UNDER SECTION 143(3) OF THE ACT WAS PASSED MAKING THE ABOVE ADDITION. THE LD. AO IN THE ASSESSMENT ORDER AT PAGE NO. 4 INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF. BASED ON THIS A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE UNDER SECTION 274 OF THE ACT ON 4.03.2016 WHEREIN THE LD. AO DID NOT STRIKE OFF ANY OF THE TWIN CHARGES OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THE PENALTY NOTICE WAS REPLIED BY THE ASSESSEE ON 24.02.2016 JUSTIFYING THE CASH DEPOSIT OF RS.4 50 000/- FROM EXPLAINED SOURCES. THE LD. AO ON CHANGE OF INCUMBENT ALSO ISSUED ANOTHER NOTICE ON 6.06.2016 UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT WHERE ALSO NONE OF THE TWIN CHARGES WAS CANCELLED. ON 14 TH JUNE 2015 ASSESSEE REPLIED THE PENALTY NOTICE. SUBSEQUENTLY THE AO PASSED AN ORDER UNDER SECTION 271(1)(C) OF THE ACT ON 28.09.2016 LEVYING A PENALTY OF RS.1 39 050/- HOLDING THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME LEADING TO CONCEALMENT AND THEREFORE IS LIABLE FOR PENALTY. 3. THE ASSESSEE CHALLENGED THE SAME BEFORE THE LD. CIT (APPEALS) WHO PASSED AN ORDER ON 27-28.09.2017 ON MERITS CONFIRMING THE PENALTY FOR CONCEALMENT OF INCOME. AFTER THAT ON 27.07.2017 APPEAL AGAINST THE QUANTUM ASSESSMENT ORDER WAS ALSO CONFIRMED BY THE CIT (APPEALS) ON 28.07.2017. THEREFORE THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD. CIT (APPEALS) CONFIRMING PENALTY OF RS.1 39 050/- IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES ON QUANTUM PROCEEDINGS AS WELL AS IN PENALTY PROCEEDINGS. WE HAVE ALSO PERUSED THE NOTICES ISSUED BY THE LD. AO UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT DATED 4 TH MARCH 2016 AND 6 TH JUNE 2016. ON PERUSAL OF THE ASSESSMENT ORDER IT IS APPARENT THAT THE LD. AO HAS RECORDED SATISFACTION OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT MENTIONING BOTH THE CHARGES. IN THE NOTICES ISSUED THE LD. AO HAS NOT STRUCK OFF ANY OF THE TWIN CHARGES. IN THE PENALTY ORDER THE LD. AO HAS PAGE | 3 LEVIED PENALTY MENTIONING BOTH THE CHARGES. THE LD. CIT (APPEALS) CONFIRMED THE PENALTY HOLDING THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME. THE LD. AO AT THE TIME OF RECORDING OF THE SATISFACTION DID NOT SHOW THAT HOW BOTH THE CHARGES ARE TESTED FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THERE MAY BE CERTAIN CIRCUMSTANCES WHERE BOTH THE CHARGES MAY SUSTAIN BUT THE LD. AO AT THE TIME OF RECORDING SATISFACTION MUST DEMONSTRATE THAT HOW BOTH THE CHARGES ARE SATISFIED. EVEN IN THE PENALTY ORDER SUCH EXERCISE HAS NOT BEEN CARRIED OUT. THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 278 IN FAVOUR OF THE ASSESSEE. FURTHER THE HONBLE DELHI HIGH COURT ALSO IN THE CASE OF SAHARA INDIA LIFE INSURANCE CORPORATION HAS HELD IN FAVOUR OF THE ASSESSEE IN ITA. 475/DEL/2019 DATED 2.08.2019. IN VIEW OF THIS THE ORDERS OF THE LOWER AUTHORITIES WITH RESPECT TO THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF RS. 1 39 050/- ARE NOT SUSTAINABLE. ACCORDINGLY WE DELETE THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 23 /03/2021. SD/- SD/- ( KUL BHARAT ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23/03/2021. *MEHTA* COPY FORWARDED TO 1. APPELLANT; 2. RESPONDENT 3. CIT 4. CIT (APPEALS) PAGE | 4 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 23.03.2021. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.03.2021. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 23.03.2021. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 23.03.2021. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 23.03.2021. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 23.03.2021. DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 23.03.2021. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.03.2021. 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 PAGE | 5