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Income Tax Appellate Tribunal, DELHI BENCH “SMC-2”, NEW DELHI
Before: SHRI H.S. SIDHU
Date of Hearing : 03-11-2015 Date of Order : 03-11-2015
ORDER These are the Appeals filed by the Assessee emanate out of Order 27.4.2015 passed by the Ld. Commissioner of Income Tax (Appeals)-15, New Delhi pertaining to the Asstt. Year 2008-09. The against the penalty u/s. 271(1)(c) of the I.T. Act, 1961. Since the issues involved in these appeals are co-related, hence, these appeals are being disposed of by way of this common order for the sake of convenience.
The grounds raised in (AY 2008-09) read as under:-
“1. The Ld. Assessing Officer, has erred in law and on facts it! making addition of Rs.7,99,OOO/- being unexplained cash credit under section 68 of the Income Tax Act on account of cash 1
ITA NOS.4593-4594/Del/2015 deposited in saving bank accounl, without consideration of facts and explanation. The CIT(A) has further failed to consider the evidence and the remand report of the AO.
2. The Ld. CIT (A) has further failed to appreciate that the Ld. AO was in a hurry
to submit remand report without allowing or giving further opportunity to assessee to submit balance confirmations. Even the confirmation have been wrongly mentioned in the remand report.
The CIT(A) has erred in law and on facts in not appreciating the source of cash deposit in the Bank Alc which is nothing but redeposit of the monies already withdrawn or available with the appellants. Therefore the explanation was neither considered by ITO in his remand report nor by the CIT(A) therefore the order of the CIT(A) is wrong and deserves to be set aside.
4. That the LD.CIT (A) has failed to appreciate that assessee had filed additional evidence and explanation to support the claim and the appellants proceedings being continuation of original proceedings, CIT(A) should have exercised his power is to grant relief on consideration of material.
Appellants prays for amendment of the any of the grounds of appeal at the time of hearing.”
3. The grounds raised in (AY 2008-09) read as under:-
ITA NOS.4593-4594/Del/2015
Ld. CIT(A) and ITO (A.O.) have erred in law and on facts imposing and maintaining penalty under see 271(1)(c) of Income tax on unexplained cash credit under section 68 of the Income Tax Act on account of cash deposit in Saving bank account. Keeping in view the relief gi ven by ClT(A) in quantum part of penalty sustained after relief by the crr (A) is wrong.
2.) Ld CIT(A) has failed to appreciate that the cash deposited in saving bank account by the assessee, treating the deposits as unexplained cash credit under section 68 of the Act is wrong and against the law. The appellant had all the explanation to the source of cash deposit there was no deliberate default and even the appellant has not furnished in accurate particulars of the income.
3 .) There being no relation to the levy of penalty simply because some addition has been made becomes the basis of imposing penalty. The Addition itself being in dispute. That the order of sustaining penalty order under section 271(1)(c) of the I.T. Act is bad in law.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, they are not being repeated here for the sake of brevity.
Ld. Counsel for the assessee alongwith the assessee personally appeared and stated that assessee is retired from Service in the month of June, 2006 and got about Rs. 8 lacs on his superannuation and the same has been deposited in the Bank. After withdrawing the amounts from his savings account, assessee
ITA NOS.4593-4594/Del/2015 has given the money to various persons including Rs. 45,000/- to Shri Ram Niwas; Rs. 1.15 Lacs to Shri Ram Bir; Rs. 1.50 lacs to Sh. Babu Lal and Rs. 2 lacs to Rs. Ghanshyam Dass totaling to Rs. 5.10 lacs. Assesee has also filed confirmations from these persons before the AO as well as before the Ld. CIT(A) which has not been properly considered by the authorities below. Ld. Counsel for the assessee further stated that Ld. CIT(A) has given the relief of Rs. 2.90 lacs ignoring the other confirmations letters filed from other creditors which has already been filed before the AO and before the Ld. CIT(A). Assessee in person alongwith the Counsel requested that the issue in dispute may be set aside to the AO to consider the confirmations and other supporting evidence for substantiating his claim of amounting to Rs. 5,09,000/- which is in dispute in the present appeal and decide the issue in dispute under the law, after giving full opportunity to the assessee of being heard.
Ld. DR relied upon the orders of the authorities below.
I have heard both the parties and perused the records especially the orders of the authorities below. I find considerable force in the contention of the assesee’s counsel that assessee is retired from Service in the month of June, 2006 and got about Rs. 8 lacs on his superannuation and the same has been deposited in the Bank. I also note that after withdrawing the amounts from his savings account, assessee has given the money to various persons including Rs. 45,000/- to Shri Ram Niwas; Rs. 1.15 Lacs to Shri Ram Bir; Rs. 1.50 lacs to Sh. Babu Lal and Rs. 2 lacs to Rs. Ghanshyam Dass totaling to Rs. 5.10 lacs. It was also submitted before me that assesee has also filed confirmations
ITA NOS.4593-4594/Del/2015 from these persons before the AO as well as before the Ld. CIT(A) which has not been properly considered by the authorities below. I further find that Ld. CIT(A) has given the relief of Rs. 2.90 lacs ignoring the other confirmations letters filed from other creditors which has already been filed before the AO and before the Ld. CIT(A, which is contrary to the law and not sustainable in the eyes of law. Therefore, in the interest of justice, I remit back the issues in dispute to the files of the Assessing Officer with the directions to consider each and every aspects of the issues involved in the Appeal and decide the same afresh. Needless to add that the assessee should be given adequate opportunity of being heard. In the result, the (AY 2008-09) filed by the assessee is allowed for statistical purposes.
ITA No. 4594/Del/2015 (AY 2008-09)
I have already remitted the issues in the quantum appeal, as aforesaid, with the directions to the AO to decide the issues in dispute afresh, after providing adequate opportunity of being heard to the assessee. Keeping in view of the facts and circumstances of the present case, I am of the view that the penalty has been levied on the additions in dispute by the AO and confirmed by the Ld. CIT(A). As I have already set aside the quantum addition to the AO to pass a fresh and speaking order thereon, therefore, the penalty in question is not sustainable and the same is deleted. However, the AO
ITA NOS.4593-4594/Del/2015 would be at liberty to initiate penalty proceedings, if any, after the outcome of the quantum assessment.
In the result, the is allowed.
Order pronounced in the Open Court on 03-11-2015.