Income Tax Appellate Tribunal - Delhi
Ajay Kumar Mukherjee, New Delhi vs Department Of Income Tax on 10 April, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'A' NEW DELHI
BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER
AND
SHRI A.N.PAHUJA, ACCOUNTANT MEMBER
I.T.A .NO.-3137/Del/2012
ASSESSMENT YEAR-2007-08
ACIT Vs. Ajay Kumar Mukherjee,
Circle-48(1), Room No-624, 40A/88, DDA Flats,
Mayur Bhawan, Connaught Place, Chittaranjan Park,
New Delhi-110001 New Delhi
PAN-ADGPM1335D
(APPELLANT) (RESPONDENT)
Appellant by: Shri C.B.Singh, Sr. DR
Respondent by: Shri Ajay Kumar Mukherjee, Assessee himself
Appeal heard on-27.08.2012
Order pronounced on-29.08.2012
ORDER
PER HARI OM MARATHA, JM
This appeal of the revenue for AY 2007-08 is directed against the order of ld. CIT(A), New Delhi, dated 10.04.2010. This appeal emanates from the penalty order dated 31-10-2011 passed u/s 271(1)(c) of the Income Tax Act, 1961 ('the Act' for short).
2. Briefly stated, the facts leading to this appeal are that the assessee, as individual, filed his return of income (ROI) for AY 2007-08 on 19.11.2007 2 I.T.A .NO.-3137/Del/2012 declaring total taxable income of Rs.6,08,935/-. The assessment u/s 143(3) of the Act was made at a total income of Rs.1,16,96,220/-, vide order dated 31-12-2009. The main source of income of the assessee is from salary but he also derived income from other sources. As per information available with the department, the assessee had made cash deposits totaling to Rs. 1,08,07,500/-, in his bank accounts, during the financial year 2006-07. When confronted about these deposits, the assessee categorically stated that the deposited amounts did not at all belong to him. These amounts were found to have been deposited in the bank account, opened in the name of the assessee as per information gathered from the bank by resorting to the provisions of section 133(6) of the Act. Accordingly, this amount was added in assessee's hands as his unexplained deposits.
3. Similarly, an amount of Rs.62,444/- relatively being as interest received during the relevant period was, concomitantly, added. Another amount of Rs.2,79,780/- which was claimed in the ROI as exempt (Rs. 1,79,780/- u/s 10(13A) and the remaining Rs. 1,00,000/- under chapter VI-A) was also added as it remained unsupported by documentary evidences. Aggrieved, by the above additions, the assessee preferred appeal before ld. CIT(A) who vide his order dated 31-05-2011, rendered in appeal No. 387/2009-10, deleted various additions. He has confirmed total addition 3 I.T.A .NO.-3137/Del/2012 of Rs. 9,08,480/- (Rs. 6,28,700/- as unexplained income u/s 68 of the Act; Rs. 1,79,780/- claimed as HRA u/s 10(13A) and an amount of Rs. 1,00,000/- claimed as deduction under chapter VIA). Consequent upon the finding of Ld. CIT(A), a fresh show cause notice was issued u/s 271(1)(c) to the assessee on 01.07.2011 which was followed by another notice dated 03-10-2011. When none-appeared, another notice was issued on 11-10-2011 at both the addresses given by the assessee. Ultimately, a reply sent by the assessee was received by Assessing Officer through speed post, on 17-10-2011. It was stated that the assessee had further filed second appeal before ITAT so the penalty proceedings should be dropped. But the Assessing Officer imposed a penalty of Rs. 34,60,740/- u/s 271(1)(c) at the minimum rate of 100% of the tax sought to be evaded which was calculated as under:-
Tax including Surcharge and Education cess on Income u/s 250/143(3) (Rs. 1,08,50,184) Rs. 35,96,071/- Less:Tax including Surcharge and Education cess On returned income of Rs. 6,08,935/- Rs. 1,35,334/-
Total evaded tax Rs. 34,60,737/-
(Or say 34,60,740/-)
Minimum penalty @ 100% of tax sought to be evaded Rs. 34,60,740/-
Maximum penalty @300% of tax sought to be evaded Rs. 1,03,82,220/-
4 I.T.A .NO.-3137/Del/2012
4. The assessee filed an appeal before ld. CIT(A) against this penalty order who after considering the fact that the Tribunal as well as Settlement Commission have settled the entire addition, deleted the entire penalty.
Now, the revenue has preferred this appeal. We have heard rival submissions and have carefully perused in entire record. The assessee has produced copies of orders passed by the Tribunal dated 13.01.2011 in Income Tax Act, 1961 NO. 3359/Del/2011 and that of Settlement Commission's order dated 21-09-2011 passed u/s 245D(4) of the Act. The assessee has filed a copy of asset statement furnished before the Settlement Commission's Principal Bench, New Delhi.
5. We have gone through the Tribunal's order vide which the matter has been restored to the file of Ld. CIT(A). Hence, the genesis of issue of show cause notice on the basis of which this impugned penalty was levied does no longer survive and hence the penalty levied also cannot survive.
6. We have also perused the Settlement Commission's order and it is revealed that the assessee had paid all due taxes as per settlement made for various AYs namely 2006-07, 2008-09, 2009-10 and 2010-11. Moreover, we have not found from the penalty order as Assessing Officer on which count whether on a/c of furnishing of incorrect particulars of income or on a/c of concealment of his taxable income, the penalty proceedings was 5 I.T.A .NO.-3137/Del/2012 initiated. The additions are mainly based on claims made as per law which remained un-substantiated and were not found to be correctly made. Therefore, in the totality of the facts and the circumstances of the case, we do not find it a fit case for imposition of penalty for either or both defaults mentioned in section 271(1)(c) of the Act.
7. Accordingly, we are also of the opinion that penalty imposed by Assessing Officer has been correctly deleted. We confirm the impugned order.
8. In the result, the appeal of the revenue stands dismissed.
Order pronounced in open Court on the 29th day of August, 2012.
Sd/- Sd/-
(A.N.PAHUJA) (HARI OM MARATHA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 29/08/2012
*Amit Kumar*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI
6 I.T.A .NO.-3137/Del/2012