VIRENDER KUMAR GUPTA,GURGAON vs. DCIT, NEW DELHI
What did the Tribunal hold?
The Tribunal held that the Assessing Officer had levied the penalty without affording the assessee an opportunity to explain the alleged concealment or furnishing of inaccurate particulars. Therefore, the matter was remitted back to the Assessing Officer for a fresh decision.
What were the facts?
The assessee's appeal concerned a penalty levied under Section 271(1)(c) of the Income-tax Act. The Assessing Officer had made several additions to the assessee's income, some of which were later deleted by the CIT(A).
What were the issues?
Whether the penalty under Section 271(1)(c) was validly levied without providing the assessee an opportunity to be heard. The validity of additions made and sustained by the CIT(A) was also implicitly considered.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI ‘SMC’ BENCH,
Before: SHRI N.K. BILLAIYA
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
This appeal by the assessee is preferred against the order of the Commissioner of Income Tax [Appeals] – XXVI, New Delhi dated 15.03.2018 pertaining to assessment year 2008-09.
The solitary grievance of the assessee is that the CIT(A) erred in confirming the penalty of Rs. 46,350/- levied u/s 271(1)(c) of the Income-tax Act, 1961 [hereinafter referred to as 'the Act'].
Facts on record show that in the assessment order framed u/s 144 r.w.s 153A of the Act, the following additions were made:
Unexplained cash found Rs.1,29,500/- Unexplained Expenditure Rs.50,000/- Unexplained cash found Rs.30,000/- Excess Deduction u/s 80C Rs.14,290/-
The fate of these additions, after the order of the first appellate authority, read as under:
Nature of addition Addition made Addition Addition by the then AO deleted by Sustained by CIT(A) CIT(A) Unexplained cash found 1,29,500 1,29,500 Nil Unexplained Expenditure 50,000 Confirmed 50,000 Unexplained cash found 30,000 30,000 Nil Excess Deduction u/s 80C 14,290 14,290 Nil Total 2,23,790 1,73,790 50,000
Penalty was levied by the Assessing Officer without affording any opportunity to the assessee to explain its case. The Assessing Officer has, suo moto, decided that the assessee has concealed its income by furnishing inaccurate particulars of income without affording any opportunity to the assessee to explain its case.
In my considered opinion, once the additions have attained finality by the order of the appellate authority, for the balance of the additions, if any, the Assessing Officer must give opportunity to the assessee to explain whether there is any concealment of income or furnishing of inaccurate particulars of income. In the case in hand, I find that the Assessing Officer has not allowed any opportunity to the assessee. I, therefore, remit the matter to the file of the Assessing Officer. The Assessing Officer is directed to decide the issue of levy of penalty u/s 271(1)(c) of the Act afresh after affording reasonable and fair opportunity of being heard to the assessee.
In the result, the appeal filed by the assessee in is treated as allowed for statistical purposes.
The order is pronounced in the open court on 08.10.2018.
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