SHREE RAM SHARMA,JAIPUR vs. ITO, WARD 7(2)
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Income Tax Appellate Tribunal, JAIPUR BENCHES, ”SMC” JAIPUR
Before: HON’BLE SHRI SANDEEP GOSAIN, JM &
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, ”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 233/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2011-12. cuke Shree Ram Sharma The Income Tax Officer, Vs. Plot No. 98, Shyam Vihar-B, Akshey Ward 7(2), Pura, Delhi Bypass Jaipur. opposite Pankuri Hotel, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. CASPS 3642 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri R.S. Jaju (Advocate) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 07/06/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 5/07/2023 vkns'k@ ORDER
PER: SANDEEP GOSAIN, J.M.
This appeal by the assessee is directed against the order dated 29.03.2023 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act, 1961 for the assessment year 2011-12. The assessee has raised the following grounds :- 1. Total amount of Rs. 78,11,225/- was received from Vijay Pura Grah Nirman Sahkari Samiti Jaipur which was deposited in Bank account in the Financial Year 2010-11 and ld. ITO considered the Income and not given the notice on the specified address which was given in the Return of AY 2011-12. Honourable Tribunal’s order dated 01.07.2019 was not properly followed. The Appellant prays that the addition in income of Rs. 79,62,930/- made in respect of cash deposited in the Bank account should be deleted. The ITO Ward
2 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur.
7(2) Siddha Nath Bhawan, Jaipur 302 032 had notice on old address of 2734, Rakdawala Kua but Asst. Year 2011-12 address was Shyam Vihar-B Plot No. 98, Akshey Pura, Delhi bypass Opposite Pankuri Hotel, Jaipur 302 013 was submitted on dated 01.05.2018 when file is amalgamated from ward 7(4) & 7(3) to 7(2) only. At least notice if actually given on correct address, then why ex-party judgement and penalty imposed u/s 271(1)(c) and demand created.
The assessee an amount of Rs. 95 lakh received from M/s. Vijay pura Grah Nirman Sahkari Samiti Limited, Society also confirmed the ITO Ward 7(3) and now income 7(2) society letter is also consisting in the file of ITO Ward 7(2) Sidhnath Bhawan, Jaipur, complete accounts of society since 01.04.1998 to last day of December, 2009. CIT (A) Delhi dismissed the appeal and did not consider the issue which was submitted on 25.02.2023 against the reply of your notice issued u/s 250 on dated 17.02.2023.
The brief facts of the case are that assessment in this case was completed
under section 143(3) of the I.T. Act, 1961 on 09.07.2013 at total income of Rs.
79,62,930/- by making an addition of Rs. 78,11,225/- on account of income from
other sources as unexplained cash was deposited in bank account of the assessee.
Against such order, assessee filed appeal before ld. CIT (A), which has been
dismissed by the ld. CIT (A)-3, Jaipur vide his order dated 31.10.2014. In the
meanwhile, the AO passed the Penalty Order under section 271(1)(c) of the IT Act
on 28.03.2016 imposing penalty of Rs. 23,10,165/-. Aggrieved by the order of ld.
CIT (A)-3, the assessee preferred appeal before the Tribunal, the Tribunal vide its
order in ITA No. 775/JP/2014 dated 01.07.2019 set aside the issue to the file of AO
for fresh adjudication after providing reasonable opportunity of hearing to the
assessee.
2.1. Now this is the second round of appeal before the Tribunal. The AO, on the
basis of the directions given by the Tribunal vide its order dated 01.07.2019 in the
3 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur.
assessee’s case, after giving opportunity of being heard, the AO passed the fresh
assessment order ex parte under section 144 on 29.09.2021 on the basis of material
available on record, at the same total income of Rs. 79,62,930/- by making addition
of Rs. 78,11,225/- as assessed vide his earlier order dated 09.07.2013. The AO also
initiated penalty proceedings under section 271(1)(c) of the IT Act, 1961 for
furnishing inaccurate particulars/concealment of income and passed penalty order
under section 271(1)(c) read with section 274 of the IT Act vide his order dated
26/31.03.2022 levying a penalty of Rs. 23,10,162/-. Aggrieved by the order of the
AO, the assessee preferred appeal before the ld. CIT (A), who vide his order dated
29.03.2023 dismissed the appeal of the assessee. Now the assessee has come in
appeal before the Tribunal.
We have heard rival submissions, perused the material on record and gone
through the orders of the revenue authorities. From the record, we noticed that in
the present case the AO passed order under section 143(3) of the IT Act, 1961 on
09.07.2013 determining total income of Rs. 79,62,930/- thereby making an addition
of Rs. 78,11,225/- on account of income from other sources as unexplained cash
deposits in the bank account. Against such order, the assessee filed appeal before
ld. CIT (A) vide its appeal no. 356/JPR/13-14 which was dismissed by the ld. CIT
(A)-3 Jaipur on 31.10.2014 thereby sustaining the entire addition made of Rs.
78,11,225/- on account of unexplained cash deposited in bank account. Against the
said order of ld. CIT (A)-3, the assessee preferred appeal before the Tribunal and
the Coordinate Bench of the Tribunal, Jaipur decided the appellant’s appeal in ITA
No. 775/JP/2014 dated 01.07.2019 and set aside the issue for fresh adjudication to
the AO after providing opportunity of hearing to the assessee before passing a fresh
4 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur.
order. In the meantime, the AO passed order of penalty under section 271(1)(c) of
the IT Act, 1961 on 28.03.2016 thereby imposing penalty of Rs. 23,10,162/-. It is
important to mention here that while complying with the directions of the Tribunal, a
fresh assessment order under section 144/Set-aside/254/143(3) of the Act was
again passed by the AO on 29.09.2021 thereby determining the total income of Rs.
79,62,930/- and penalty proceedings under section 271(1)(c) of the Act was again
initiated separately for furnishing inaccurate particulars of income/concealment of
income and a fresh penalty order under section 271(1)(c) read with section 274 of
the Act was also passed on 26/31.03.2022 thereby levying penalty of Rs.
23,10,162/-.
3.2. However, as per the above facts narrated by us, now there are two penalty orders – one passed on 28.03.2016 and 2nd penalty order passed on 26/31.03.2022
in view of fresh assessment order dated 29.09.2021. In this way, the initial penalty
order passed on 28.03.2016 has become infructuous in view of the fact that the
original order of assessment dated 09.07.2013 itself has been set aside by the ITAT
in ITA No. 775/JP/2014 dated 01.07.2019 which means that the original order of
assessment is “ No more in existence”. Therefore, the order of penalty which arise
out of the original assessment order has also been automatically become
infructuous, more particularly when fresh order of assessment has already been
passed on 29.09.2021 and separate penalty proceedings which was initiated has also
culminated by passing order dated 26/31.03.2022. Now before us, the controversy
in dispute is that the assessee has challenged the initial penalty order dated
28.03.2016 wherein the ld. CIT (A) while dismissing the appeal of the assessee has
already held that the appeal filed by the assessee against the initial penalty order
5 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. dated 28.03.2016 has become infructuous. However, before us, the assessee has reiterated the same facts which we have narrated above and in view of our above discussion, we are of the view that the initial penalty order dated 28.03.2016 has become infructuous in view of the fact that a fresh order of assessment has already been passed on 29.09.2021 for which separate penalty proceedings were initiated which culminated in passing penalty order under section 271(1)(c) read with section 274 on 26/31.03.2022. Since the initial penalty order dated 28.03.2016 has already become infructuous, therefore, the order passed by the ld. CIT (A) does not suffer from any fault and thus the same stands confirmed and upheld. Consequently the present appeal filed by the assessee is dismissed. 3.3. The assessee is at liberty to challenge the fresh penalty order dated 26/31.03.2022 in accordance with law.
In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 5/07/2023.
Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBkSM+ deys'k t;arHkkbZ ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 5/07/2023. Das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shree Ram Sharma, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Ward 7(2), Jaipur.
6 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 233/JP/2023}
vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत
