MRS. JAYANTI DALMIA vs. DY. COMMISSIONER OF INCOME TAX

ITA Nos. 37-43/2022 Page 1 of 8

$~15-21 * IN THE HIGH COURT OF DELHI AT NEW DELHI

+ ITA 37/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX ..... Respondent Through Mr.Ajit Sharma, senior standing counsel. + ITA 38/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX ..... Respondent Through Mr.Ajit Sharma, senior standing counsel. + ITA 39/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX ..... Respondent Through Mr.Ajit Sharma, senior standing counsel.

This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 2 of 8

+ ITA 40/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-26, NEW DELHI

..... Respondent Through Mr.Ajit Sharma, senior standing counsel. + ITA 41/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-26, NEW DELHI

..... Respondent Through Mr.Ajit Sharma, senior standing counsel. + ITA 42/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

versus

DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-26, NEW DELHI

..... Respondent Through Mr.Ajit Sharma, senior standing counsel.

This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 3 of 8

+ ITA 43/2022

MRS. JAYANTI DALMIA

..... Appellant Through Mr.Ramesh Singh, Sr.Advocate with Ms.Shreya Jain and Mr.Gaurav Tanwar, Advocates.

Versus

DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-26, NEW DELHI

..... Respondent Through Mr.Ajit Sharma, senior standing counsel.

Date of Decision: 09th March, 2022

CORAM: HON'BLE MR. JUSTICE MANMOHAN HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN J U D G M E N T MANMOHAN, J (Oral): C.M.Nos.11776/2022 & 11778/2022 in ITA No.37/2022 C.M.Nos.11812/2022 & 11814/2022 in ITA No.38/2022 C.M.Nos.11817/2022 & 11819/2022 in ITA No.39/2022 C.M.Nos.11902/2022 & 11904/2022 in ITA No.40/2022 C.M.Nos.11907/2022 & 11909/2022 in ITA No.41/2022 C.M.Nos.11912/2022 & 11914/2022 in ITA No.42/2022

Accordingly, the applications stand disposed of. C.M.Nos.11918/2022 & 11920/2022 in ITA No.43/2022

Exemption allowed, subject to all just exceptions. This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 4 of 8

C.M.No.11777/2022 in ITA Nos.37/2022 C.M.No.11813/2022 in ITA Nos.38/2022 C.M.No.11818/2022 in ITA Nos.39/2022 C.M.No.11903/2022 in ITA Nos.40/2022 C.M.No.11908/2022 in ITA Nos.41/2022 C.M.No.11913/2022 in ITA Nos.42/2022 C.M.No.11919/2022 in ITA Nos.43/2022

Keeping in view the averments in the applications as well as the Covid-19 pandemic and the fact that the appellant had filed applications under Section 254(2) of the Income Tax Act before the ITAT, which have been disposed of only on 20th January, 2022, the delay in filing the present appeals is condoned.

Accordingly, the applications stand allowed.

ITA Nos.37/2022 & C.M.Nos.11775/2022 & 11779/2022 ITA Nos.38/2022 & C.M.Nos.11811/2022 & 11815/2022 ITA Nos.39/2022 & C.M.Nos.11816/2022 & 11820/2022 ITA Nos.40/2022 & C.M.Nos.11901/2022 & 11905/2022 ITA Nos.41/2022 & C.M.Nos.11906/2022 & 11910/2022 ITA Nos.42/2022 & C.M.Nos.11911/2022 & 11915/2022 1. Present appeals have been filed challenging the order dated 31 ITA Nos.43/2022 & C.M.Nos.11917/2022 & 11921/2022

st October, 2018 as well as the order dated 20th January, 2022 passed by the Income Tax Appellate Tribunal, Delhi Bench, wherein the Income Tax Appellate Tribunal (ITAT) has upheld the order of the CIT with respect to non-compliance of the notice issued under Section 142(1) of the Income Tax Act, 1961 (hereafter referred to as “the Act”) by the Appellant-assessee and the consequent imposition of penalty under Section 271(1)(b) of the Act. It is pertinent to mention that vide order dated 20th January, 2022, the ITAT This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 5 of 8

had dismissed the applications filed by the Appellant-assessee under Section 254(2) of the Act. 2. Briefly stated the relevant facts are that the Revenue had received documents from the French official sources, indicative of the fact that the Appellant-assessee was an account holder no.2 of a Swiss Bank account in HSBC Bank. The Appellant-assessee was requested to furnish the details of account opening form in respect of the foreign bank account, complete bank statements in original since beginning and residential status as per the Act as on the date of opening of the above mentioned foreign Bank Accounts. In the alternative, the Appellant-assessee was served with a notice calling upon her to co-operate and, inter alia, fill a consent-cum-waiver form. The form is set out in the documents annexed to these appeals and requires the Appellant-assessee’s consent to enable the tax authorities to obtain information from Swiss Bank in respect of bank accounts held there. The Appellant-assessee disputes that she was ever an account holder in the Swiss banks. 3. Learned senior counsel for the Appellant-assessee submits that the Appellant-assessee was not obliged to fill such consent form as she was in no way involved in those transactions and/or she had no connection with the bank accounts. He further states that in the case of the Appellant-assessee, the protective assessment order has been deleted by the Commissioner of Income Tax (Appeals) vide order dated 11th August, 2017. He submits that once a protective assessment order has been deleted, there is no question of any penalty being levied upon the Appellant-assessee. He also states that penalty proceeding initiated against the Appellant-assessee’s husband had been dropped by the ITAT vide order dated 06th May, 2020. This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 6 of 8

In these circumstances, the penalty cannot be held to be erroneous or unwarranted. No question of law arises. The appeals are dismissed.”

ITA Nos. 37-43/2022 Page 7 of 8

made both on protective and substantive basis in the hands of her husband with regard to the same Swiss Bank account as he was account holder No.1. The relevant portion of the order dated 11th “6. Ground no.3 for the Ays.2006-07 and 2007-08 relate to contentions of the appellant against addition made by the AO under section 69 of the IT Act towards unexplained investment in relation to an alleged offshore bank account HSBC Bank Geneya, Switzerland. This ground has been adjudicated by me in the case of Sh. Anurag Dalmia for the AY 2006-07 and 2007- 08 in which after discussing the issue involved in detail, the appeals have been dismissed. On identical facts, for these years in the appellant’s case also, the appeal on this ground are dismissed. However, since the additions in the case of appellant were made on protective basis and the substantive additions made in the case of Sh. Anurag Dalmia have been confirmed by me, therefore, the additions made on protective basis deserves to be deleted.”

August, 2017, passed by the CIT(A), is reproduced hereinbelow:- 8. This Court is further of the view that the judgment passed by the Supreme Court in Selvi & Ors (supra) has no application to the facts of the present case as the same has only upheld the principle of ‘right of silence’ and, that too, in the context of criminal proceedings. Though there are certain observations with regard to the non-penal proceedings, yet the same is not the ratio of the said judgment. 9. In any event, this Court is of the opinion that if the assessee really had no connection with the Swiss Bank accounts, no prejudice would have been caused to her if she had complied with the notice under Section 142(1) of the Act and filled the consent form. Moreover, it cannot be that penalty is upheld with regard to the attorney holder (Mr. Sanjay Dalmia) of the Swiss This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909

ITA Nos. 37-43/2022 Page 8 of 8

bank account and not with regard to the account holder no.2 (Appellant- assessee) qua the same bank account. 10. In these circumstances, no question of law arises of consideration and the penalty imposed upon the Appellant cannot be held to be erroneous and unwarranted. Accordingly, the present appeals are dismissed.

MANMOHAN, J

SUDHIR KUMAR JAIN, J MARCH 09, 2022 KA This is a digitally signed Judgement. NEUTRAL CITATION NO: 2022/DHC/000909