Income Tax Appellate Tribunal - Delhi
Dcit, Faridabad vs Sh. Vikas Aggarwal, Gurgaon on 6 February, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL ( DELHI BENCH: 'I)' NEW DELHI BEFORE SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA No. 1099 /Del/2015 Assessment Year: 2011-12 DOT, Central Ci rcle-02 vs Vikas Aggarwal, Faridabad 26-P, Sector-33, Gurgaon PAN AAIIPA081 5G Assessee by Shri Ved Jain, Adv Shri Ashish Goyel, CA Revenue by Smt. Naina Soin Kapil, Sr. DR Date of Hearing 06.02 .2019 Date of Prono uncement 6.02.2019 ORDE R PER K.NARASIMHA CH ARY:
Challenging the orders dated 29/12/2014 in appeal number 46/C IT(A)(C)/GGN/2013-14 on the file o f the learned Commissioner of Income Tax (Appeals)- 3, Gu rgaon , ("Ld. CIT (A)") whereunder the Ld. CIT(A) deleted the penalty le vied by th e learned assessing officer for the assessment years 2011-12, Revenue preferred this appeal.
2. Brief facts of the case are that the assessee has been derivin g income from busi ness. There was search and seizure operation s under section 132(1) of the Act at the residential as well as the office premi ses of the assessee o n 28/1/2011. Pursuant to the notice issued under section 142 (1) of the Ac t assessee filed a return o f income declaring an income of Rs. 23,22,78,3 76/- alter making total surrender amo unting to Rs. 23 crores. Assessment wa s completed under section 153B (1) (b) o f t he Act on 28/3/2013 at the returned income. While compl eting the assessment , learned assessi ng officer initiated proceedings under section 271 AAA o f the Act and concluded them by order dated 27/9/2013 with the levy of penalt y of Rs. 2.30 crores.
3. Assessee preferred appeals against the penalty order. Ld. CTT(A) b y wa y of impugned ord er accepted the contentions o f the assessee and directed the learned assessing o fficer to delete the penalt y. Re venue is, t herefore, before us in thi s app eal stating that when the ba sic requireme nts of section 271 AAA of the Act b y not ful filli ng an d the assessee failed to elaborate th e manner in which the undisclo sed income was deri ved , Ld. CIT(A) should not have deleted the penalt y.
4. It is the submi ssio n of the Ld. AR that the assessee in this case by name Vikas Agrawal is the brot her of o ne Pradeep Aggarwal and both the brothers are residing in the same house which was subjected to the search and seizure operations and 28/1/201 1. In the case of Pradeep Aggarwal the surrendered amount was 22 crores and the penalt y was 2.2 c rores. Ld. A R submitted that but for the change in these figu res all the facts are identical in the cases of both the brothers. By producing the copie s of the assessmen t order, penalty order, order o f the Ld . CIT(A) and that of a coordinate Bench of this Tribunal in IT A No. 1 100/del/2015 in the case of Pradeep Aggarwal, Ld. AR submitted that in the case of Pradeep Aggarwal also Ld. C1T(A) deleted the penalty and the order of the Ld. C1T(A) is u pheld by a coordinate Bench of this Tribun al b y order dated 15 /10/2018 in IT A No. 1 100 /Del/ 2015. 1 le therefore squarel y relied on th e reasonin g and conclusion s of th e coordinate bench of this T ribunal i n the case of Pradeep Aggarwal and submitted that t he penalt y can not be sustained in the ca se of Vikas Agrawal also.
5. Ld . DR heavil y rel ied on the orders of the assessing officer and submitted that in the absence o f fulfilment of any of the requirements under section 271 AAA, Ld. C1T (A) is not justified in deleting the penalt y. She placed reliance on the decision o f the Delhi High Court in the case of PCIT vs. Smt. Ritu Singhal (201 8) 92 taxmann.com 224 (del ) in support of her contention that where the assessee did not speci fy in searc h proceedings as to how he deri ve d undi sclosed income an d under what head it fell in, it could not be concluded, that the assessee had ful filled requirement s of section 13 2 (4) and, thus, penalty order passed agai nst her under section 271 AAA wa s to be confirmed.
6. we ha ve one throu gh the record. It could be seen from the impugned order it was argued before the Ld. C IT(A) that the surrendered amount wa s admitted under section 13 2 (4) of the Act and that t he same, a s disclosed in the return filed, whi le also accepted b y the learned assessing officer, due taxes were also paid and such su rrender was made to buy peace and to avoid litigation, apart from the fact that n o specific query about the substantiation was asked of him in t he course o f search. Assessee contended that he ful fille d all the three conditions as laid down in su bsection 2 o f section 271 AAA and placed reliance on the decision o f the ITon'ble Allahabad 1 li gh Court in th e case of crossings in frastructure Lt d vs. C IT (Central) 22 2 taxm an 26 and the decision of the I lon'ble jurisdiction al I li gh Cou rt in the case of CIT vs. Su dhir Jain in ITA No. 575 of 2013.
7. Ld . Cff(A) on a consideration o f the fact s in volved in thi s ca se, found that these facts are covered b y vari ous decisions of the Delhi benches of the Tribunal in the ca se of Sitaram Gupta vs. ACI'f in ITA No. 1 835 and 1836 of 2013, Nceraj Singhal vs. ACI'f in 14 6 ITD 152, M/s Spaze tower pri vate limited vs. DC IT in ITA No . 2296/del/2012 and t he decisio ns of Chandigarh Bench in the case of ACIT vs. Muni sh Kumar Goyal 45 taxmann.com 563, ACI'f vs. Gian Chand Gupta in ITA numbers 1005 to 100 7/Chd/2013 etc. B y following the said decisions Ld. C IT(A) directed the deletion of the pe nalty.
8. We ha ve gone throug h the order dated 15/ 10/2018 in IT A No. 1 100/del/2015 in the ease of Pradeep Agg arwal where the facts are identical to the facts invol ved in this matter. A coordinate Bench of this Tribunal while noticing the decision o f the Hon'ble Gujarat High Court in the case of PCIT vs. Shahlon Silk Mills in IT A No. 82 3 of 2 017 order dated 5/02/2018 and the decision of the I lon'ble Delhi 1 ligh Co urt in the case of Sm t. Ritu Si ngal to the contrary, recorde d a findin g t hat inasmuch as the assessee falls under the jurisdiction of the I l on'ble Punjab and Ha ryana 1 ligh Co urt, the decision o f the 1 Ion'ble Delhi I li gh Court is not bindin g on the assessee. It , therefore, reached a conclusion that when two views are p ossible on an i ssue, th e view which is favourable t o the a ssessee has to be accepted in view of the decision o f the 1 lon'ble Apex Court in the case of vegetable prod ucts Ltd 88 ITR 192.
9. The Tribunal further noted that since the assessee had surrendered additional income b y pa ying the taxes d ue thereon and no specific quer y was raised by the search part y at the time of search, following the decision of the I lon'ble Gujarat High Court and various other decisi on s relied upo n by the Ld. CIT(A) t he penalty ca nnot be sustained .
10. In view of the fact t hat the facts o f thi s case are identical to the facts involved i n ITA No. 1 100/del/2015 in the ease of the brother of the a sse ssee, namely, Pradeep Aggarwal we are o f the considered opi ni on that, in the absence of any comp elling reaso ns, the vi ew taken b y a coordi nate Bench o f this Tribunal in Prad eep Aggarwal's case cannot be deviated. We, therefore, while respect fully followin g the said decision hold that the penalt y in thi s matter also cannot be sustained. We, accordingly, do not find anyt hing illegal or irregular either i n the approach or co nclusion s reached b y t he Ld. Cff(A) and, accordi ngly, hol d that the ground s o f appeal o f t he revenue are di vi ded o f any merits. Accordingly, they are dismisse d.
11. In the result, appeal s o f the re venue is dismissed .
Order pronounced in the Open Court on 06.02.2019.
(O.P. MEENA) ( K.NARASIMHACH ARY)
ACCOUNTANT ME MBER JUDICIAL MEMBER
Dated:6 T H Februar y, 2019 /VJ
Copy forwarded to:
1. Appellant
2. Respondent
3. Cff
4. CIT(Appeals)
5. DR: ITAT
AS S IS T A N T R HG IS T R A R IT A T M W D E L H I