EJAZ AKHTAR,NEW DELHI vs. ITO, WARD- 28(4), NEW DELHI

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ITA 4934/DEL/2019Status: DisposedITAT Delhi15 June 2022AY 2011-125 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that since the quantum addition needs to be decided afresh, the matter of penalty levy under Section 271(1)(c) should also be restored to the AO. The AO is directed to decide the penalty afresh after determining the quantum addition.

What were the facts?

The assessee's appeal concerns a penalty levied under Section 271(1)(c) on cash deposits of Rs. 58,52,055/-. The quantum addition for these deposits was previously restored to the AO by the Tribunal to examine the peak cash deposits.

What were the issues?

Whether the penalty under Section 271(1)(c) can be confirmed when the underlying quantum addition is subject to fresh examination by the AO. The issue of whether only peak cash deposits should be considered for addition.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 69A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘B’, NEW DELHI

Before: SH. N. K. BILLAIYA & SH. YOGESH KUMAR US

Hearing: 15/06/2022Pronounced: 15/06/2022

ORDER PER N.K. BILLAIYA, AM:

This appeal by the assessee is preferred against the order of the CIT(A)-33, New Delhi dated 27.03.2019 pertaining to A.Y.2011-12.

2.

The sum and substance of the grievance of the assessee is that the CIT(A) erred in confirming the penalty levied u/s. 271 (1)

(c) of the Act. A perusal of the order levying penalty u/s. 271 (1)

(c) of the Act show that the penalty has been levied on the cash found to be deposited in the bank account with P N B, Maharani Bagh, Delhi amounting to Rs.58,52,055/-.

3.

We further find that when the quantum addition was made the quarrel travelled upto to the Tribunal and this Tribunal in /2015 order dated 05.08.2020 has restored the issue to the files of the AO to examine the working of peak cash deposits furnished by the assessee and thereafter make the addition of the Peak amount. The relevant findings of the coordinate bench read as under :-

“8. We have heard the rival submissions and perused the relevant materials available on record. The issue in the present ground is with respect to the addition of cash deposits made by the assessee in his Bank account. It is an undisputed fact that assessee has deposited cash in his Bank account on various dates and the amount aggregated to Rs.58,52,055/-. Learned AR from the copy of the Bank statement has pointed out that invariably the cash deposit is followed by the cash withdrawal through ATM on next day or very shortly thereafter. The withdrawn cash is returned to the person who has deposited the cash or on his instructions to the person stated by him. The assessee had given the explanation about the deposit of cash and withdrawals in the statement before AO but the same was rejected by the AO.

9.

We find that during the course of assessment proceedings for A.Y. 2009-10 assessee had given similar explanation and the activities performed by him and the AO in the assessment order passed u/s 143(3) had made addition of only the peak deposits of cash. Before us, Learned AR has also pointed to the fact that for A.Y. 2012-13, the case of the assessee was re-opened for the reasons that it was noted that there were cash deposits in assessee’s bank account and the assessee being a non-filer. We find that in the assessment order passed for A.Y. 2012-13 u/s 147 r.w. 143(3), the income declared by the assessee has been accepted and no addition on account of undisclosed source u/s 69A of the Act has been made. In such a situation following the principle of consistency, we are of the view that the addition of the entire cash deposits in the assessee’s Bank account is uncalled for and find force in the submission of the Ld AR that only the peak cash deposits be considered as income of the Assessee. Before us, assessee has filed the working of the peak credit of deposits. We however find that there is no finding of the lower authorities on that aspect. Considering the totality of the facts and in view of the facts that in earlier years the addition has been made only on the peak deposits, we direct the AO to make the addition of only the peak cash deposits during the year. We accordingly direct the AO to examine the working of peak cash deposits furnished by the assessee and thereafter make the addition of the peak amount. We thus direct so. Thus the ground of the Assessee is partly allowed.”

4.

In our considered view since the quantum addition need to be decided afresh as per the directions of this Tribunal (supra).

We deem it fit to restore the matter relating to the levy of penalty u/s. 271 (1) (c) of the Act to the files of the AO. The AO is directed to decide the levy afresh after deciding the quantum addition and after affording a reasonable and sufficient opportunity of being heard to the assessee.

5.

In the result, the appeal is treated as allowed for statistical purposes.

Order pronounced in the open court on 15.06.2022.

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