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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal by the assessee and corresponding Cross Objections (C.O.) by the Revenue are against the order dated 14.3.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon [hereinafter referred to as CIT(A)].
ITA No. -733/Chd/2016 & C.O. 48/Chd/2017 Multitech Towers Pvt.Ltd, Chandigarh 2
ITA No. 733/Chd/2016 – assessee’s appeal
The assessee in this case has agitated the levy of penalty u/s
271AAA of the Income-tax Act, 1961 (in short 'the Act') for non-payment
of tax by the due date.
At the outset, Ld. Counsel for the assessee has submitted that the
assessee had already paid the taxes before levy of penalty in question. That
the issue is squarely covered in favour of the assessee by the decision of
the Hon'ble Supreme Court in the case of ‘ACIT Vs. Gebilal Kanhaialal,
HUF’ [2012] 348 ITR 561 (SC) .
The Ld. DR could not produce any distinguishing case laws. It is
pertinent to mention that in the case of ‘ACIT Vs. Gebilal Kanhaialal,
HUF’ (supra) the issue was relating to the imposition of penalty in the
light of the clause (2) of explanation 5 of section 271(1)(c) of the
Income-tax Act, 1961, wherein, the requirement was that the assessee must
pay the due taxes and interest on the surrendered income. Though the
penalty levied in the present case is u/s 271AAA of the Income-tax Act,
1961, however, the issue is the same that the assessee must pay the taxes
and interest on the surrendered income. Since the assessee before the levy
of penalty has already paid the taxes and interest thereupon, hence, in the
light of the decision of the Hon'ble Supreme Court in the case of ‘ACIT
Vs. Gebilal Kanhaialal, HUF’ (supra), the penalty levied by the lower
authorities is not sustainable and the same is accordingly ordered to be
deleted.
C.O. No.48/Chd/2017 – by the Revenue
Now coming to the Cross objections of the Revenue, it is found that
the same is time barred by 385 days. The Revenue in the Cross objections,
ITA No. -733/Chd/2016 & C.O. 48/Chd/2017 Multitech Towers Pvt.Ltd, Chandigarh 3
however, has agitated the findings of the Ld. CIT(A) on the issue that the assessee has not disclosed the manner of the earning of the undisclosed income which is one of the requirement of the provisions of section 271AAA of the Act to escape reasons of the penalty.
The Ld. counsel for the assessee has brought our attention to the Circular No.3 / 2018 of the CBDT dated 11.7.2018 prescribing monetary limit for filing the appeal, wherein, in para 12 of the circular it has also
been clarified that the aforesaid monetary limit will also apply to the Cross objections u/s 253(4) of the Act.
In view of this, since on the monetary limit of the penalty, even if
the Revenue would succeed on this issue, is below the prescribed limit, hence, otherwise the Cross objections of the Revenue are not maintainable. In view of this, the Cross Objections raised by the Revenue are dismissed. In the result, the appeal of the assessee is allowed, whereas, the Cross objection of the Revenue stands dismissed. Order pronounced in the Open Court on 20.11.2018.
Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member Dated : 20.11.2018 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
ITA No. -733/Chd/2016 & C.O. 48/Chd/2017 Multitech Towers Pvt.Ltd, Chandigarh 4
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar