Income Tax Appellate Tribunal - Delhi
Rmp Holding (P) Ltd., New Delhi vs Ito, Ward- 20(3), New Delhi on 20 November, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'SMC' NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A .No.-4480/Del/2018
(ASSESSMENT YEAR-2006-07)
RMP Holding (P) Ltd., vs ITO
138C, Block-B, Group-4, Ward 20(3)
Dilshad Garden, New Delhi. New Delhi.
PAN NO. AAACR5533N
(APPELLANT) (RESPONDENT)
Appellant by Shri Suresh K. Gupta, CA
Respondent by Shri S.L. Anuragi, Sr. DR
Date of Hearing 19/11/2018
Date of Pronouncement 19/11/2018
ORDER
This appeal filed by the Assessee is directed against the Order dated 23.04.2018 of the Ld. CIT(A), New Delhi relevant to assessment year 2006-07 on the following grounds: -
1. "The Ld. CIT(A) has erred both in law and in facts in upholding the impugned penalty order passed by Ld. AO as the same has been passed for concealing/furnishing inaccurate particulars of income by the appellant and mentioning of alternative defaults shows that AO failed to establish precise default for which penalty has been levied and there is in ambiguity in the finding with regard to the default for which penalty is levied.
2. The Ld. CIT(A) has erred in law and on facts in confirming imposition of penalty u/s 271(1)(c) for alternative defaults of concealing/furnishing inaccurate particulars of income, whereas in the assessment order default of furnishing inaccurate particulars thereby concealing true taxable income is mentioned, which has different intent and substance and default of concealing inaccurate particulars of income is no default for which any penalty could be levied.
3. The Ld. CIT(A) has erred both on facts and in law in upholding the impugned order of penalty passed u/s 271(1)(c) of the Act on the basis of the show cause notice dated 26.03.2014 where there is ambiguity about the default attributable to the appellant as per show cause notice.
4. The Ld. CIT(A) has erred on the facts and circumstances of the case in confirming the order of penalty disregarding the fact that the additions ITA Nos. 4480/D/2018 2 A.Y. 2006-07 RMP Holding (P) Ltd.
on which the penalty is levied are not tenable under law and no penalty u/s 271(1)(c) can be levied on the additions which are legally unassailable.
5. The appellant craves leave to add, delete, modify/amend the above grounds of appeal with the permission of the Hon'ble appellate authority."
2. The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.
3. At the time of hearing, Ld. AR for the assessee draw my attention towards the grounds raised by the assessee before the Ld. First Appellate Authority, especially the ground no. 4 in which the Assessee has challenged the ambiguity in the Show Cause Notice issued by the AO u/s. 271(1)© of the Income Tax Act, 1961. He further submitted that Ld. CIT(A) himself has reproduced the ground no. 4 at page no. 6 vide para no. 2.3 of the impugned order, but has not given any finding on the same which is contrary to law and facts on file. Hence, he requested that issue involved in ground no. 4 raised before the Ld. CIT(A) and also ground no. 1 & 2 raised in the instant appeal may be set aside to the file of the Ld. CIT(A) with the directions to pass a speaking order on the same.
4. Ld. DR did not object to the proposition of the Ld. AR of the assessee, but however, he relied upon the orders of the authorities below.
5. I have heard both the parties and perused the records, especially the impugned order as well as the Form No. 35 wherein the Assessee has raised the grounds before the Ld. CIT(A) in appellate stage. I find that assessee before the Ld. CIT(A) has raised following four grounds:-
1. Order under appeal is bad in law and is against facts of the case.
2. The order under appeal is not tenable under law as the same has been passed for concealing / furnishing ITA Nos. 4480/D/2018 3 A.Y. 2006-07 RMP Holding (P) Ltd.
inaccurate particulars of income by the appellant and mentioning of alternative default shows that AO failed to establish precise default for which penalty has been levied and there is ambiguity in the finding with regard to the default for which penalty is levied.
3. The AO erred in law and on facts in imposing penalty u/s. 271(1)© for alternative defaults of concealing/ furnishing inaccurate particulars of income whereas in the assessment order default of furnishing inaccurate particulars thereby concealing true taxable income is mentioned, which has different intent and substance and default of concealing inaccurate particulars of income is no default for which any penalty could be levied.
4. The AO has erred both on facts and in law in passing the impugned order of penalty on the basis of the show cause notice dated 26.3.2014 where there is ambiguity about the default attributable to the appellant as per show cause notice.
5.1 After perusing the aforesaid grounds raised by the assessee before the ld. CIT(A) in Form No. 35, I find considerable cogency in the contention of the ld. AR for the assessee that the ground no. 4 as aforesaid before the Ld. CIT(A) wherein, the assessee has challenged the ambiguity in the show cause notice issued by the AO u/s. 271(1)(c) of the Act. I note that Ld. CIT(A) himself has reproduced the ground no. 4 at page no. 6 vide para no. 2.3 of the impugned order, but has not given any finding on the same which is contrary to law and facts on file. Therefore, assessee has raised the same grounds vide ground no. 1 & 2 before the Tribunal. In view of above, in my considered opinion, the ground no. 4 raised by the Assessee before the Ld. CIT(A), as aforesaid and ground no. 1 & 2 raised before the Tribunal, as cited ITA Nos. 4480/D/2018 4 A.Y. 2006-07 RMP Holding (P) Ltd.
above needs to be set aside to the file of the ld. CIT(A) to pass a speaking order on the same. Hence, I set aside the same to the file of the Ld. CIT(A) with the directions to decide same and pass a speaking order thereon and give proper opportunity of being heard to the assessee.
6. In the result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced on 19.11.2018.
Sd/-
(H.S. SIDHU)
JUDICIAL MEMBER
Dated: 19/11/2018
Kavita/SRBhatnagar
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI