Smt. Sarita Singh, Jhajjar v. Addl. CIT, Rohtak

ITA 723/DEL/2017 | 2011-2012
Pronouncement Date: 10-03-2021 | Result: Allowed

Appeal Details

RSA Number 72320114 RSA 2017
Assessee PAN AZXPS2543L
Bench Delhi
Appeal Number ITA 723/DEL/2017
Duration Of Justice 4 year(s) 1 month(s) 1 day(s)
Appellant Smt. Sarita Singh, Jhajjar
Respondent Addl. CIT, Rohtak
Appeal Type Income Tax Appeal
Pronouncement Date 10-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 10-03-2021
Last Hearing Date 09-03-2021
First Hearing Date 09-03-2021
Assessment Year 2011-2012
Appeal Filed On 08-02-2017
Judgment Text
I.T.A.NO.723/DEL/2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI B.R.R. KUMAR ACCOUNTANT MEMBER . . /. I.T.A NO.723/DEL/2017 / ASSESSMENT YEAR: 2011-12 SARITA SINGH H.NO. 8 PREM NAGAR NEAR SECTOR-2 BAHADURGARH JHAJJAR. VS. ADDL. CIT RANGE ROHTAK AAYKAR BHAWAN OPPOSITE MANSAROVAR PARK ROHTAK. PAN NO. AZXPS2543L APPELLANT / RESPONDENT /ASSESSEE BY SH. R.S. SINGHVI CA SH. SATYAJIT GOEL CA /REVENUE BY SH. PRAKASH DUBEY SR. DR / DATE OF HEARING: 0 9 .03.2021 /PRONOUNCEMENT ON 1 0 .03.2021 /O R D E R PER BHAVNESH SAINI J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) ROHTAK DATED 14.12.2016 FOR AY 2011-1 2 CHALLENGING THE LEVY OF PENALTY U/S 271D OF THE I.T. ACT. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL ON RECORD. 3. THE ASSESSEE FILED RETURN OF INCOME DECLARING IN COME OF RS. 2 30 000/- PLUS AGRICULTURAL INCOME OF RS. 1 10 000 /- WAS FILED ON I.T.A.NO.723/DEL/2017 2 31.03.2012. THE ASSESSEE IS A CIVIL CONTRACTOR. T HE AO MADE ADDITION OF RS. 42 587/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWN. THE AO ALSO MADE ADDITION OF RS. 1 10 000/- ON ACCOUNT OF UNDISCLOSE D AGRICULTURAL INCOME. THE ASSESSMENT WAS COMPLETED U/S 143(3) DATED 21.03 .2014. THE AO IMPOSED PENALTY U/S 271D OF THE I.T. ACT VIDE ORDER DATED 28.04.2015/01.05.2015. THE AO IN THIS ORDER HAS ME NTIONED THAT ASSESSEE HAS RECEIVED CASH AMOUNT OF RS. 1 74 320/- AND RS. 35 90 165/- FROM MS. SUJATA AND SHRI DUSHYANT OTHER THAN ACCOUN T PAYEE CHEQUE/DRAFT IN CONTRAVENTION OF PROVISIONS OF SECT ION 269SS OF THE ACT. THE ASSESSEE IN RESPONSE TO SHOW-CAUSE NOTICE FILED A REPLY WHICH WAS NOT ACCEPTED BY AO HENCE PENALTY U/S 271D OF THE ACT WAS IMPOSED. THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE. 4. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT ASSESSEE HAS MAINTAINED ACCOUNT WITH IDBI BANK BAHADURGARH. MS. SUJATA AN D SHRI DUSHYANT ARE THE NEIGHBOURS OF THE ASSESSEE AND KNOWN TO ASSESSE E FOR MANY YEARS. THEY HAVE NO BANK ACCOUNT AND HAVE PURCHASED PROPER TY AND THEY HAVE TO MAKE PAYMENT TO HUDA FOR DEVELOPMENT CHARGES WHI CH COULD BE MADE ONLY THROUGH DEMAND DRAFT AND REQUESTED TO HELP THE M. THEY HAVE GIVEN CASH TO THE ASSESSEE THROUGH WHICH DRAFTS WERE PREP ARED IN THEIR NAMES FOR PAYMENT TO BE MADE TO HUDA FOR DEVELOPMENT CHAR GES. THE ASSESSEE DID THIS ACT ON HUMANITARIAN GROUND TO HELP THEM OU T. COPY OF THE BANK STATEMENT IN THE NAME OF THE ABOVE PERSONS ALONG WI TH BANK ACCOUNT OF THE ASSESSEE ARE FILED THE RECEIPT IN THE NAME OF S H. DUSHYANT IS ALSO FILED ISSUED BY HUDA OF THE SAME AMOUNT. 5. LD. COUNSEL FOR ASSESSEE THEREFORE SUBMITTED THA T DUE TO THE ABOVE REASONABLE CAUSE ASSESSEE RECEIVED CASH FROM THESE TWO PERSONS. THEREFORE NO PENALTY IS LEVIABLE. HE HAS RELIED U PON THE ORDER OF THE ITAT JAIPUR BENCH IN THE CASE OF SUNIL KUMAR VS. AD DL. CIT IN ITA NO. 203 & 204 (JP)/2018 DATED 09.01.2019 IN WHICH AMOUNT WA S RECEIVED FOR MAKING DEMAND DRAFT IN FAVOUR OF EXCISE DEPARTMENT FOR PARTICIPATING IN I.T.A.NO.723/DEL/2017 3 THE TENDER OF LIQUOR SHOP. IN SUCH CIRCUMSTANCES IT WAS HELD THAT ASSESSEE HAS A REASONABLE EXPLANATION THEREFORE P ENALTY WAS CANCELLED. 6. ON THE OTHER HAND LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. SECTI ON 273B OF THE I.T. ACT PROVIDES THAT NO PENALTY SHALL BE IMPOSABLE ON THE PERSONS OR THE ASSESSEE AS THE CASE MAY BE FOR ANY FAILURE REFERRE D TO IN SECTION 271D OF THE I.T. ACT IF HE PROVES THAT THERE WAS A REASONA BLE CAUSE FOR THE SAID FAILURE. THE ASSESSEE EXPLAINED BEFORE THE AUTHORI TIES BELOW THAT TWO OF THE NEIGHBOURS OF THE ASSESSEE PURCHASED THE PROPER TIES AND THEY WERE TO MAKE PAYMENT TO HUDA. SINCE THERE WAS HAVING NO BA NK ACCOUNT THEREFORE ON THEIR REQUEST ASSESSEE RECEIVED THE A MOUNT AND DEPOSITED IN HIS BANK ACCOUNT. THE DRAFTS WERE PREPARED FAVO URING THE HUDA AND ULTIMATELY THE SAME HAVE BEEN DEPOSITED BY THEM. T HE RECEIPTS ARE IN THE NAMES OF MRS. SUJATA AND SHRI DUSHYANT OF THE E QUIVALENT AMOUNT. THE RECEIPTS OF HUDA IN FAVOUR OF SHRI DUSHYANT ARE ALSO PLACED ON RECORD. THESE FACTS WOULD CLEARLY DISCLOSE THAT AS SESSEE HAS REASONABLE CAUSE FOR FAILURE TO COMPLY WITH PROVISIONS OF LAW CONTAINED U/S 271D OF THE I.T. ACT. FURTHER WHILE PASSING THE ASSESSMEN T ORDER DATED 21.03.2014 THE AO DID NOT DISBELIEVE THE EXPLANATIO N OF THE ASSESSEE AS REGARDS RECEIPT OF CASH FROM THESE TWO NEIGHBOURS A ND ISSUE OF DRAFTS FOR THESE TWO NEIGHBOURS AND ULTIMATE PAYMENT TO HUDA. THE AO DID NOT RECORD ANY SATISFACTION IN THE ASSESSMENT ORDER FOR CONTRAVENTION OF PROVISIONS OF SECTION 271D OF THE I.T. ACT. THE HO NBLE SUPREME COURT IN THE CASE OF CIT VS. JAI LAXMI RICE MILLS 379 ITR 52 1 HELD AS UNDER: FOR THE AY 1992-93 THE ASSESSMENT ORDER WAS PASSE D ON THE ASSESSEE ON FEBRUARY 26 1996 EX PARTE. WHILE FRA MING THE ASSESSMENT THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD CONTRAVENED THE PROVISIONS OF SECTION 269SS OF THE INCOME- TAX ACT 1961 AND BECAUSE OF THIS THE ASSESSING OF FICER WAS SATISFIED THAT PENALTY PROCEEDINGS U/S 271D OF THE ACT WERE TO BE INITIATED. ON APPEAL THE COMMISSIONER (APPEALS ) BY ORDER I.T.A.NO.723/DEL/2017 4 DATED DECEMBER 5 1996 SET ASIDE THE ASSESSMENT OR DER WITH A DIRECTION TO FRAME THE ASSESSMENT DE NOVO AFTER AFF ORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. MEANWHILE PE NALTY UNDER SECTION 271D WAS LEVIED BY ORDER DATED SEPTEM BER 23 1996 I.E. BEFORE THE APPEAL OF THE ASSESSEE AGAIN ST THE ORIGINAL ASSESSMENT ORDER WAS HEARD AND ALLOWED THE REBY SETTING ASIDE THE ASSESSMENT ORDER ITSELF. AFTER R EMAND THE AO PASSED A FRESH ASSESSMENT ORDER BUT IN THIS ASSE SSMENT ORDER NO SATISFACTION REGARDING INITIATION OF PENA LTY PROCEEDINGS U/S 271D OF THE ACT WAS RECORDED. THE TRIBUNAL AS WELL AS THE HIGH COURT HELD THAT THE PENALTY ORD ER PASSED ON THE BASIS OF THE ORIGINAL ASSESSMENT ORDER COULD NOT STILL SURVIVE WHEN THAT ASSESSMENT ORDER HAD BEEN SET ASI DE BECAUSE THE SATISFACTION RECORDED THEREIN FOR THE P URPOSE OF INITIATION OF THE PENALTY PROCEEDINGS WOULD ALSO NO T SURVIVE. ON FURTHER APPEALS: HELD DISMISSING THE APPEALS THAT IN THE FRESH ASSESSMENT ORDER THERE WAS NO SATISFACTION RECORDED REGARDING PENALTY PROCEEDINGS UNDER SECTION 271D OF THE ACT THOUGH IN THAT ORDER THE ASSESSING OFFICER WANTED P ENALTY PROCEEDINGS TO BE INITIATED U/S 271(1)(C) OF THE AC T. THUS THE PENALTY U/S 271D WAS WITHOUT ANY SATISFACTION A ND THEREFORE NO SUCH PENALTY COULD BE LEVIED. 8. CONSIDERING THE ABOVE IN THE LIGHT OF THE JUDGM ENT OF SUPREME COURT ABOVE IT IS CLEAR THAT ASSESSEE HAS REASONAB LE CAUSE FOR FAILURE TO COMPLY WITH PROVISIONS OF LAW AND THAT NO SATISFACT ION HAS BEEN RECORDED BY THE AO IN THE ASSESSMENT ORDER WOULD CLEARLY SH OW THAT NO PENALTY IS LEVIABLE IN THE MATTER. 9. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY U/S 271D OF THE I.T. A CT. 10. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 10/03/2021 SD/- SD/- (B.R.R. KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.03.2021 I.T.A.NO.723/DEL/2017 5 * KAVITA ARORA SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR ITAT: DELHI BENCHES-DELHI