Income Tax Appellate Tribunal - Chandigarh
Sh. Jatinder Kumar Nanda, Chandigarh vs Dcit, Cc-Ii, Chandigarh on 6 November, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ, च डीगढ़ I N T H E I NC OM E T A X A P PEL L A TE T RI B U N AL C H A NDI G A RH B EN CH , ' SM C' , C H A N DI G A RH ी संजय गग , या यक सद य B E F OR E S H R I S A N J A Y G A R G, J U D I C I A L M E M B E R आयकर अपील सं./ ITA No. 2 3 9 / C H D / 2 0 1 9 नधा रण वष / Assessment Year : 2009-10 Sh Jatinder Kumar Nanda, Vs. The DCIT, House No.2208, Sector 15, बनाम Central Circle-II, Chandigarh Chandigarh थायी लेखा सं./PAN NO. AAJPN1739J अपीलाथ /Appellant यथ /Respondent नधा रती क ओर से/Assessee by : Shri Parkkshit Aggarwal, CA राज व क ओर से/ Revenue by : Sh. M.P.Dwivedi, JCIT सन ु वाई क तार%ख/Date of Hearing : 06.11.2019 उदघोषणा क तार%ख/Date of Pronouncement : 06.11.2019 आदे श/Order The present appeal has been preferred by the assessee against the order dated 30.01.2019 of the Commissioner of Income Tax (Appeals)- 3, Gurgaon [hereinafter referred to as 'CIT(A)] agitating the action of the Ld. CIT(A) in confirming the penalty levied by the Assessing Officer u/s 271 (1)(c) of the Income Tax Act, 1961 (in short 'the Act').
2. The brief facts relating to the issue are that during the course of search proceedings, the Assessing Officer noticed that the assessee is involved in Client Code Modification (CCM) and had gained contrived loss of Rs. 1,59,147 and had reduced the taxable income to the tune of ITA No. 239-CHD-2019- Shri Jatinder Kumar Nanda, Chandigarh 2 Rs. 1,59,147/- . The Assessing Officer, accordingly reopened the case of the assessee u/s 147 read with section 148 of the Income Tax Act, 1961 (in short 'the Act') and show caused the assessee as to why the addition may not be made for booking this loss by way of Client Code Modification and thereby evading the tax. However, in reply, the assessee submitted that the assessee did not carry out any transaction during the year and neither any loss on account of any share transaction was booked. The assessee also did not carry out any CCM in his D-mat account either directly or through broker. The assessee pleaded that it was a case of mistaken identity. However, to avoid the litigation, he agreed for addition of an amount of Rs. 1,59,147/- in the returned income. The Assessing Officer subsequent to that, initiated penalty proceedings u/s 271 (1)(c) of the Act .
3. During penalty proceedings, the assessee reiterated his stand and submitted that the addition was agreed to avoid litigation as the assessee is an old age person of 80 years. That there was no evidence available against the assessee of any share transaction done by the assessee during the year under consideration.. Merely because that the quantum addition has been made that was not the ground for levy of penalty u/s 271 (1)(c) of the Act. The Ld. Assessing Officer, however, observed from the report of the Investigation Wing that the concerned broker had done so many Client Code modification transactions and thereby booked the profit and loss from share transactions in the accounts of various ITA No. 239-CHD-2019- Shri Jatinder Kumar Nanda, Chandigarh 3 persons. The Assessing Officer further observed that since the assessee had agreed for the addition in the quantum assessment proceedings, hence, it was a fit case for levy of penalty u/s 271 (1)(c) of the Act.
The Ld. CIT(A) confirmed the penalty so levied by the Assessing Officer. The assessee, thus, has come in appeal before this Tribunal.
4. I have heard the rival contentions of the Ld. Authorized Representatives of both the parties and have gone through the record. In this case, the assessee has taken a consistent stand that he had not done any share transactions, what to say of booking of any bogus loss as alleged by the Assessing Officer. It has been time and against held that the penalty proceedings are different from quantum proceedings. In the penalty proceedings, it has to be established that there was any act of concealment or furnishing of inaccurate particulars of income by the assessee to evade payment of tax. There is no evidence on the file to show that the assessee had carried out any share transaction. Merely because the additions have been made in the quantum proceeding and as the assessee had agreed for the same, however, without admitting that he had booked any bogus losses, that itself cannot be held to be a ground of levy of penalty u/s 271 (1)(c) of the Act. .
The Ld. counsel has invited my attention to the Income tax return for the assessment year under consideration filed by the assessee which shows that the assessee did not book either any short term capital loss or gain or any long term capital loss or gain during the year under ITA No. 239-CHD-2019- Shri Jatinder Kumar Nanda, Chandigarh 4 consideration. Under such circumstances, it cannot be said that the assessee had made any attempt to evade payment of tax by way of concealment of income or furnishing of inaccurate particulars of income in this respect.
In view of this, the penalty levied by the lower authorities is not sustainable in the eyes of law and the same is accordingly ordered to be deleted.
In the result, the appeal of the assessee stands allowed. Order dictated and pronounced in the Open Court immediately on completion of hearing.
Sd/-
(संजय गग / SANJAY GARG) या यक सद य/ Judicial Member Dated : 06. 11.2019 "आर.के."
आदे श क त,ल-प अ.े-षत/ Copy of the order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. आयकर आयु/त/ CIT
4. आयकर आयु/त (अपील)/ The CIT(A)
5. -वभागीय त न2ध, आयकर अपील%य आ2धकरण, च4डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File आदे शानस ु ार/ By order, सहायक पंजीकार/ Assistant Registrar ITA No. 239-CHD-2019-
Shri Jatinder Kumar Nanda, Chandigarh 5