Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH ‘E’: NEW DELHI
ORDER PER ANADEE NATH MISSHRA, AM: (A) For the sake of convenience, these four appeals filed by the assessee are hereby disposed of through this consolidated order. The grounds of appeal are as under:
Assessment Year 2009-10 “1. The Penalty impose by the Ld. AO u/s 271(1)(c) of the Act, 1961 of Rs. 3,41,59,950 /- and confirmed by CIT (A)-26, accordingly. He has failed to consider and appreciate the explanation given by the appellant ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT Company and also not given the opportunity to submit the reply/ submission by the CIT (A)-26.
2. While filing the appeal u/s 271 (1) (c) of the Act, 1961, assessee Company wrongly filed an appeal u/s 271 (c) of the act due to some technical disperiances, 1961; As assessee notice that they filed an appeal in wrong Section; Assessee Company immediately filed an appeal in Correct Section which is 271 (1) (c) of the Act, 1961.
CIT (A) -26 confirmed the Penalty without any chance of hearing on that matter, not a single notice serve by CIT (A) -26 by mail on the registered email id of the appellant Company or by hard copy at the registered office address of the appellant Company.
4. CIT (A) -26 passed the ex-parte order without serving any appeal notice by soft or hard copy ; thus in this case there is complete violation of fundamental rights of the appellant Company; thus the order passed by the CIT (A)-26 by confirmed the Penalty imposed of AO is completely null and Void.
That no reasonable opportunity having been provided by the Ld. AO at the time of levying penalty. Only one Show Cause notice dated 28.02.2019 is send to the appellant Company. In respect to that notice appellant Company submit their detailed reply to Ld. AO on dated 11.03.2019. But they levied the penalty without giving a reasonable opportunity to the appellant Company and in the appeal Proceedings CIT (A) - 26 passed the order without serving a single notice to the assessee Company.
6. CIT (A)- 26 mention in the appeal order that appellant Company take various adjournments during the appeal proceedings ; Whereas there is no adjournment filed by the appellant Company ; in the appeal proceedings there is no notice served by CIT (A) -26 by mail or at office address through post. When appellant Company not received any appeal notice there is no scope of adjournment in this case. CIT (A) 26 confirmed ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT the Penalty order of Ld. AO is completely wrong, null and Void. During the appeal proceedings, there are complete violations of the fundamental rights of the appellant Company for passing an order without giving opportunity and against the natural justice.
7. On the facts of the case and in law, the order of the Ld. AO is contrary to the principles of natural justice.
8. Thus, there is no original demand u/s 271(c), of the act, 1961; there is just an defect appeal filed by an assessee Company while filing the appeal u/s 271(1) (c), of the act, 1961; so we are requested to you kindly delete this demand 9. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.”
Assessment Year 2009-10 “1. That the appellant denies its liability as the Penalty impose by the Ld. AO u/s 271 (1) ( c) of the Act, 1961 of Rs. 3,41,59,950 /- and confirmed by CIT (A)-26, accordingly denies its liability to pay thereon. He has failed to consider and appreciate the explanation given by the appellant Company and also not given the opportunity to submit the reply/ submission by the CIT (A)-26.
2. That having regard to the facts and circumstances of the case, Ld. A.O. has erredin law and on facts in framing the Penalty order u/s 271 (1) (C)and same confirmed by CIT (A)-26 without assuming jurisdiction as per law.
3. That the Ld. AO has grossly erred in levied the penalty u/s 271 (1) (c) amounting to Rs. 3,41,59,950/-and confirmed by CIT (A) without appreciating the fact that the appellant Company had neither furnished inaccurate particulars of his income nor concealed his income.
ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT
4. That the Ld. AO has grossly erred in levied the penalty and confirmed by CIT (A) under section 271(l)(c) of the Act on deeming addition under section 68 of the Act, amounting to Rs. 3,41,59,950 /-.
5. That having regard to the facts and circumstances of the case, Ld. CIT (A) -26 has erred in law and on facts by confirmed a penalty u/s 271 (1) ( C) of the Act, by recording incorrect facts and findings and without giving any opportunity of hearing and without bringing any adverse material on record. 6. CIT (A) -26 confirmed the Penalty without any chance of hearing on that matter, not a single notice serve by CIT (A) -26 by mail on the registered email id of the appellant Company or by hard copy at the Registered office address of the appellant Company. 7. CIT (A) -26 passed the ex-parte order without serving any appeal notice by soft or hard copy ; thus in this case there is complete violation of fundamental rights of the appellant Company; thus the order passed by the CIT (A)-26 by confirmed the Penalty imposed of AO is completely null and Void. 8. That no reasonable opportunity having been provided by the Ld. AO at the time of levying penalty. Only one Show Cause notice dated 28.02.2019 is send to the appellant Company. In respect to that notice appellant Company submit their detailed reply to Ld. AO on dated 11.03.2019. But they levied the penalty without giving a reasonable opportunity to the appellant Company and in the appeal Proceedings CIT (A) - 26 passed the order without serving a single notice to the assessee Company. 9. CIT (A)- 26 mention in the appeal order that appellant Company take various adjournments during the appeal proceedings ; Whereas there is no adjournment filed by the appellant Company ; in the appeal proceedings there is no notice served by CIT (A) -26 by mail or at office address through post. When appellant Company not received any appeal ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT notice there is no scope of adjournment in this case. CIT (A) 26 confirmed the Penalty order of Ld. AO is completely wrong, null and Void. During the appeal proceedings, there is complete violations of the fundamental rights of the appellant Company for passing an order without giving opportunity and against the natural justice.
10. That the Ld. AO has failed to appreciate that ITAT, New Delhi passed order in the case of same appellant Company of earlier Assessment Year in which the additional deleted for AY 2006-07, 2007-08, 2008-09 towards the addition made by the Ld. AO on same grounds and facts u/s 68 of the Act. The appellant Company has submitted the above fact before the Ld. AO and referred case for AY 2009-10 is under consideration before the ITAT New Delhi. But Ld. AO instead of consider and evaluate the above facts of the case, passed Penalty order on account of concealment of Income without considering our submission.
11. On the facts of the case and in law, the order of the Ld. AO is contrary to the principles of natural justice.
12. That Penalty order u/s 271(1)(c), of the Act, is bad in law, illegal, unjustified, barred by limitation, contrary to facts & law and based upon recording of incorrect facts and finding, without giving adequate opportunity of hearing, in violation of principles of natural justice and the same deserves to be quashed.
13. Without prejudice to the above grounds, the said Penalty could not be made in the present appeal because no incriminating material has been found as a result of search.
14. That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and on facts in framing the Penalty order and CIT (A) -26 confirmed the Penalty order in violation of principles of natural justice and in passing the impugned order by recording incorrect facts and findings.
ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT
15. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.”
Assessment Year 2010-11 “1. That the appellant denies its liability as the Penalty impose by the Ld. AO u/s 271 (1) ( c) of the Act, 1961 of Rs. 4,99,65,300/- and confirmed by CIT (A)-26, accordingly denies its liability to pay thereon. He has failed to consider and appreciate the explanation given by the appellant Company and also not given the opportunity to submit the reply/ submission by the CIT (A)-26.
2. That having regard to the facts and circumstances of the case, Ld, A.O. has erred in law and on facts in framing the Penalty order u/s 271 (1) (C)and same confirmed by CIT (A)-26 without assuming jurisdiction as per law.
3. That the Ld. AO has grossly erred in levied the penalty u/s 271 (1) (c) amounting to Rs. 4,99,65,300 /-and confirmed by CIT (A) without appreciating the fact that the appellant Company had neither furnished inaccurate particulars of his income nor concealed his income.
That the Ld. AO has grossly erred in levied the penalty and confirmed by CIT (A) under section 271(l)(c) of the Act on deeming addition under section 68 of the Act, amounting to Rs. 4,99,65,300/-.
5. That having regard to the facts and circumstances of the case, Ld. CIT (A) -26 has erred in law and on facts by confirmed a penalty u/s 271 (1) ( C) of the Act, by recording incorrect facts and findings and without giving any opportunity of hearing and without bringing any adverse material on record.
CIT (A) -26 confirmed the Penalty without any chance of hearing on that matter, not a single notice serve by CIT (A) -26 by mail on the ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT registered email id of the appellant Company or by hard copy at the Registered office address of the appellant Company.
7. CIT (A) -26 passed the ex-partee order without serving any appeal notice by soft or hard copy ; thus in this case there is complete violation of fundamental rights of the appellant Company; thus the order passed by the CIT (A)-26 by confirmed the Penalty imposed of AO is completely null and Void.
That no reasonable opportunity having been provided by the Ld. AO at the time of levying penalty. Only one Show Cause notice dated 28.02.2019 js send to the appellant Company. In respect to that notice appellant Company submit their detailed reply to Ld. AO on dated 11.03.2019. But they levied the penalty without giving a reasonable opportunity to the appellant Company and in the appeal Proceedings CIT (A) - 26 passed the order without serving a single notice to the assessee Company.
CIT (A)- 26 mention in the appeal order that appellant Company take various adjournments during the appeal proceedings ; Whereas there is no adjournment filed by the appellant Company ; in the appeal proceedings there is no notice served by CIT (A) -26 by mail or at office address through post. When appellant Company not received any appeal notice there is no scope of adjournment in this case. CIT (A) 26 confirmed the Penalty order of Ld. AO is completely wrong, null and Void. During the appeal proceedings, there is complete violations of the fundamental rights of the appellant Company for passing an order without giving opportunity and against the natural justice.
That the Ld. AO has failed to appreciate that ITAT, New Delhi passed order in the case of same appellant Company of earlier Assessment Year in which the additional deleted for AY 2006-07, 2007-08, 2008-09 towards the addition made by the Ld. AO on same grounds and facts u/s 68 of the Act. The appellant Company has submitted the above ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT fact before the Ld. AO and referred case for AY 2009-10 is under consideration before the ITAT New Delhi. But Ld. AO instead of consider and evaluate the above facts of the case, passed Penalty order on account of concealment of Income without considering our submission.
On the facts of the case and in law, the order of the Ld. AO is contrary to the principles of natural justice.
That Penalty order u/s 271 (1) ( C) , of the Act, is bad in law, illegal, unjustified, barred by limitation, contrary to facts & law and based upon recording of incorrect facts and finding, without giving adequate opportunity of hearing, in violation of principles of natural justice and the same deserves to be quashed.
Without prejudice to the above grounds, the said Penalty could not be made in the present appeal because no incriminating material has been found as a result of search.
That having regard to the facts and circumstances of the case, Ld. A.O. has erred in law and on facts in framing the Penalty order and CIT (A) -26 confirmed the Penalty order in violation of principles of natural justice and in passing the impugned order by recording incorrect facts and findings.
That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.”
Assessment Year 2010-11 “1. The Penalty impose by the Ld. AO u/s 271 (1) (c) of the Act, 1961 of Rs. 4,99,65,300 /- and confirmed by CIT (A)-26, accordingly. He has failed to consider and appreciate the explanation given by the appellant Company and also not given the opportunity to submit the reply/ submission by the CIT (A)-26.
ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT
While filing the appeal u/s 271 (1) (c) of the Act, 1961, assessee Company wrongly filed an appeal u/s 271 (c) of the act due to some technical disperiances, 1961; As assessee notice that they filed an appeal in wrong Section; Assessee Company immediately filed an appeal in Correct Section which is 271 (1) (c) of the Act, 1961.
3. CIT (A) -26 confirmed the Penalty without any chance of hearing on that matter, not a single notice serve by CIT (A) -26 by mail on the registered email id of the appellant Company or by hard copy at the registered office address of the appellant Company. 4. CIT (A) -26 passed the ex-parte order without serving any appeal notice by soft or hard copy ; thus in this case there is complete violation of fundamental rights of the appellant Company; thus the order passed by the CIT (A)-26 by confirmed the Penalty imposed of AO is completely null and Void. 5. That no reasonable opportunity having been provided by the Ld. AO at the time of levying penalty. Only one Show Cause notice dated 28.02.2019 is send to the appellant Company. In respect to that notice appellant Company submit their detailed reply to Ld. AO on dated 11.03.2019. But they levied the penalty without giving a reasonable opportunity to the appellant Company and in the appeal Proceedings CIT (A) - 26 passed the order without serving a single notice to the assessee Company. 6. CIT (A)- 26 mention in the appeal order that appellant Company take various adjournments during the appeal proceedings ; Whereas there is no adjournment filed by the appellant Company ; in the appeal proceedings there is no notice served by CIT (A) -26 by mail or at office address through post. When appellant Company not received any appeal notice there is no scope of adjournment in this case. CIT (A) 26 confirmed the Penalty order of Ld. AO is completely wrong, null and Void. During the appeal proceedings, there are complete violations of the fundamental ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT rights of the appellant Company for passing an order without giving opportunity and against the natural justice.
On the facts of the case and in law, the order of the Ld. AO is contrary to the principles of natural justice.
8. Thus, there is no original demand u/s 271 ( c), of the act, 1961; there is just an defect appeal filed by an assessee Company while filing the appeal u/s 271 ( 1) ( C), of the act, 1961; so we are requested to you kindly delete this demand 9. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.”
(B) For the Assessment Year 2009-10, assessment order dated 22.03.2013 under Section 153A/143(3) of Income Tax Act, 1961 [“IT Act” for short] was passed determining the assessee’s total income at Rs.6,83,46,170/- as against return of income of Rs.13,46,170/-. Additions of Rs.6,36,50,000/- (on account of share premium) and Rs.33,50,000/- (on account of share application money) were made in the aforesaid assessment order. Subsequently, vide order dated 30.03.2019 passed under Section 271(1)(c) of IT Act, penalty amounting to Rs.3,41,59,950/- was levied under Section 271(1)(c) in respect of aforesaid quantum additions of Rs.6,36,50,000/- and Rs.33,50,000/-. The assessee filed appeals against aforesaid order dated 30.03.2019 passed by the AO u/s. 271(1)(c) of IT Act, vide the appeal numbers 10015/19- 20 and 10067/19-20. Vide aforesaid appeal no.10015/19-20, appeal filed by the assessee in the office of Ld. CIT(A), was ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT erroneously filed against order u/s. 271C of IT Act, whereas, in fact, the impugned order dated 30.03.2009 of the Assessing Officer was passed u/s. 271(1)(c) of IT Act. To make amends, the assessee filed another appeal vide appeal no. 10067/19-20 in the office of Ld. CIT(A), this time appropriately against aforesaid order dated 30.06.2009 u/s.271(1)(c) of the IT Act passed by the Assessing Officer. The aforesaid appeals of the assessee were dismissed by the ld. CIT(A) vide separate orders dated 23.10.2019 and 22.10.2019, respectively. The present appeal before us vide for Assessment Year 2009-10 is filed by the assessee against the aforesaid impugned appellate order dated 23.10.2019 in appeal no. 10015/19-20 of ld. CIT(A). Similarly, the present appeal before us vide ITA No.9818/Del/2019 for Assessment Year 2009-10 has been filed by the assessee against the aforesaid impugned appellate order dated 22.10.2019 in Appeal No.10067/19-20 of the ld. CIT(A).
(B.1) In the Assessment Year 2010-11, assessment order dated 22.03.2013 was passed by the Assessing Officer under Section 143(3) r.w. Section 153A of IT Act, wherein the assessee’s total income was determined at Rs.10,03,66,290/-. In the aforesaid assessment order, additions of Rs.9,12,00,000/- [on account of share premium], Rs. 48 lakh [on account of share application money] and Rs. 20 lakh [on account of deemed dividend under Section 2(22)(e) of Income Tax Act] were made by the Assessing Officer. Subsequently, vide order dated 30.03.2019 passed under ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT Section 271(1)(c) of IT Act, penalty amounting to Rs.4,99,65,300/- was levied by the Assessing Officer under Section 271(1)(c) of Income Tax Act in respect of aforesaid additions of Rs.9,12,00,000/- and Rs.48,00,000/- and Rs. 20,00,000/-. The assessee filed appeals against the aforesaid order dated 30.03.2019 under Section 271(1)(c) of Income Tax Act, before the ld. CIT(A) vide appeal numbers 10017/19-20 and 10070/19-20. Aforesaid appeal, vide appeal no.10017/19-20 filed by the assessee in the office of Ld. CIT(A), was erroneously filed against order u/s. 271C of IT Act; whereas, in fact, the impugned order dated 30.03.2019 of the Assessing Officer was passed u/s. 271(1)(c) of IT Act. To make amends, the assessee filed another appeal vide aforesaid appeal no.10070/19-20, this time appropriately against order dated 30.03.2019 passed u/s.271(1)(c) of IT Act, by the Assessing Officer. Vide impugned appellate orders dated 23.10.2019 and 22.10.2019, respectively, the aforesaid appeals of the assessee were dismissed by the ld. CIT(A). The present appeal vide for Assessment Year 2010-11 has been filed by the assessee against the aforesaid impugned appellate order dated 23.10.2019 in appeal no.10017/19-20. The present appeal before us in Assessment Year 2010-11 has been filed by the assessee against the aforesaid impugned appellate order dated 22.10.2019 in appeal no. 10070/19-20.
(C). At the time of hearing before us, the learned Counsel for the assessee (“Ld. Counsel”, for short) submitted that the Co-ordinate ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT Bench of Income Tax Appellate Tribunal, Delhi; vide consolidated order dated 26.02.2021, in ITAs No. 3338 & 3339/Del/2017 for Assessment Years 2009-10 & 2010-11, has already deleted the aforesaid quantum additions of Rs.6,36,50,000/- and Rs.33,50,000/- for Assessment Year 2009-10; and quantum additions of Rs.9,12,00,000/- and Rs.48,00,000/- and Rs. 20,00,000/- for Assessment Year 2010-11. Copies of the aforesaid consolidated order dated 26.02.2021 passed by Co-ordinate Bench of ITAT, Delhi were also filed by the appellant-assessee. The Ld. Counsel submitted that the corresponding quantum additions having already been deleted by the Co-ordinate Bench of ITAT Delhi in the aforesaid consolidated order dated 26.02.2021; the penalties under Section 271(1)(c) of IT Act, amounting to Rs. 3,41,59,950/- for Assessment Year 2009-10 and Rs. 4,99,65,300/- for the Assessment Year 2010-11 have no legs to stand, and cannot survive. He further submitted that the impugned appellate orders of the ld. CIT(A) for Assessment Years 2009-10 and 2010-11 should be set aside and the Assessing Officer should be directed to delete the aforesaid penalties of Rs. 3,41,59,950/- for Assessment Year 2009- 10 and Rs. 4,99,65,300/- for Assessment Year 2010-11. The ld. Senior Departmental Representative (“Ld. Sr.D.R.” for short) for the Revenue was in agreement with the aforesaid submissions of the ld. Counsel for the assessee.
(D). The relevant facts are not in dispute. There is no dispute that aforesaid additions of Rs.6,36,50,000/- and Rs.33,50,000/- for ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT Assessment Year 2009-10; and Rs.9,12,00,000/- and Rs.48,00,000/- and Rs. 20,00,000/- for Assessment Year 2010-11 have already been deleted by Co-ordinate Bench of ITAT Delhi in aforesaid consolidated order dated 26.02.2021 in and 3339/Del/2017 for Assessment Year 2009-10 and 2010-11, respectively. Representatives of both sides; Ld. Sr. DR for Revenue and Ld. Counsel for the appellant assessee; are also in agreement that the corresponding quantum additions having already been deleted by Co-ordinate Bench of ITAT Delhi in the aforesaid consolidated order dated 26.02.2021; the aforesaid penalties amounting to Rs. 3,41,59,950/- for Assessment Year 2009-10 and Rs.4,99,65,300/- for Assessment Year 2010-11, levied by separate orders of the Assessing Officer, each dated 30.03.2019, passed u/s. 271(1)(c) of IT Act; have no legs to stand, and cannot survive. In view of the foregoing, and with due respect for the aforesaid consolidated order dated 26.02.2021 of Co-ordinate Bench of ITAT Delhi, we set aside the aforesaid impugned appellate order dated 22.10.2019 for Assessment Year 2009-10 and the aforesaid impugned appellate order dated 22.10.2019 for Assessment Year 2010-11; and further, we direct the Assessing Officer to delete the aforesaid penalty levied under Section 271(1)(c), amounting to Rs. 3,41,59,950/- for Assessment Year 2009-10 and amounting to Rs.4,99,65,300/- for Assessment Year 2010-11. Thus, appeals before us, vide ITA No.9818/Del/2019 for Assessment Year 2009-10 and vide Assessment Year 2010-11 are allowed. In coming to our conclusion, Page 14 of 15 ITAs No.9747, 9818, 9819 & 9820/Del/2019 M.L. Singhi & Associates P. Ltd. vs. ACIT we take guidance and strength from order of Hon’ble Supreme Court in the order of K.C. Builders vs. ACIT 135 Taxman 461 (SC). In view of our aforesaid directions and having regard to facts stated in foregoing paragraphs (B) and (B.1) of this order; present appeals before us vide ITA No.9747/Del/2019 for Assessment Year 2009-10 and vide ITA No.9820/Del/2019 for Assessment Year 2010-11 are irrelevant and infructuous, and need not be separately or additionally decided; and these two appeals are also treated as disposed off in accordance with aforesaid directions.
(E) In the result, these four appeals are treated as allowed for statistical purposes. Our order was already pronounced orally on 7th July, 2022 in Open Court, after conclusion of the hearing, in the presence of representatives of both sides. Now, this consolidated order in writing is signed today on 12/07/2022.