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Income Tax Appellate Tribunal, DELHI BENCH ‘F’: NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’: NEW DELHI BEFORE, SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No.2346/Del/2022 (ASSESSMENT YEAR 2018-19) M/s Pearl Beverages Addl.CIT, Limited, Central Range-2 702, Ansal Bhawan, Vs. New Delhi 16 KG Marg, New Delhi-110 001 PAN-AAACP 4560D (Appellant) (Respondent) Appellant by Ms Timsi Sharma, CA Respondent by Ms. Beena, Sr. DR Date of Hearing 20/06/2023 Date of Pronouncement 06/07/2023
ORDER PER YOGESH KUMAR U.S., JM: This appeal by Assessee is filed against the order of Learned
Commissioner of Income Tax (Appeals)-24, New Delhi [Ld. CIT(A)”,
for short], dated 16/08/2022 for Assessment Year 2018-19.
Grounds taken in this appeal are as under:
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ITA No.2346/Del/2022 M/s Pearl Beverages Limited vs. ACIT
“1. That on the facts and in the circumstances of the appellant’s case, the learned Commissioner of Income Tax (Appeals)-24, Delhi erred both in facts and in law in upholding penalty levied by the learned AO under section 271DA amounting to Rs.9,90,907/- for alleged violation of provisions of section 269ST as per Statement of Financial Transaction filed by appellant in Form 61A wherein inadvertent, unintentional and bona-fide mistake was committed by the appellant at the time of filling of newly introduced non-revisable online Form only on the basis that the appellant failed to correct the inadvertent mistake.
That on the facts and in the circumstances of the appellant’s case, the learned Commissioner of Income Tax (Appeals)-24, Delhi erred both in facts and in law in upholding penalty levied by the learned AO under section 271DA amounting Rs.9,90,907/- for alleged violation of provisions of section 269ST by arbitrarily and prejudicially rejecting comprehensive submission of the appellant including duly audited tax Audit Report and filed by tax auditors and approved by appellant only on the basis of doubts, suspicion, conjectures and surmises that the books of accounts were manipulated at the time of tax audit without bringing any evidence on record.
That on the facts and in the circumstances of the appellant’s case, the learned Commissioner of Income Tax (Appeals)-24, Delhi erred both in fact and in law in upholding penalty u/s 271DA of Rs.9,90,907/- for alleged violation of provisions of section 269ST by arbitrarily and prejudicially rejecting comprehensive submission of the appellant only on the basis that independent verification under section 133(6) of the Act, 1961 could not be carried out.
That the appellant craves leave to add, amend or alter any of the grounds of appeal.”
Brief facts of the case are that, the Department found that the
assessee had received cash of Rs.9,90,907/- in contravention of
Section 269ST of the Income Tax Act (‘Act’ for short), accordingly
notice u/s 274 read with 271DA of the Act was issued to the
assessee requiring it to show cause as to why penalty may not be Page 2 of 6
ITA No.2346/Del/2022 M/s Pearl Beverages Limited vs. ACIT imposed under the provision of Section 271DA for violation of the
provisions of Section 269ST of the Act. In response, the assessee
submitted that ‘due to inadvertent mistake by filing of statement of
financial transaction (SFT) for the F.Y. 2017-18, the company into
consideration, the entire amount received in cash during the year
instead of showing those amounts which were in excess of Rs. 2
Lakhs or more in cash (a) in aggregate from a person in a day; or,
(b) in respect of a single transaction; or (c) in respect of transactions
relating to one event or occasion from a person in contraventions of
provisions of section 269ST of the I.T. Act. It was further added that
due this inadvertent mistake the aggregate amount of Rs.
9,90,907/- was shown amount received though no cash exceeding
Rs. 2 Lakhs was received by the assessee’.
On perusal of the above reply filed by the assessee, the Ld.
A.O. issued a notice u/s 136(6) to M/s Swammi Ayyappa Agencies,
Prathipadu, Gantur, Andhra Pradesh calling upon further relevant
details. The notice issued u/s 136(6) has not been served on the
party. The Ld. A.O. proceeded to impose penalty u/s 271DA of the
Act of Rs.9,90,907/- on the assessee vide order dated 30/04/2019.
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ITA No.2346/Del/2022 M/s Pearl Beverages Limited vs. ACIT Aggrieved by the penalty order dated 30/04/2019, the assessee
preferred an appeal before the CIT(A) and the ld. CIT(A) vide order
dated 16/08/2022 dismissed the Appeal filed by the assessee. As
against the order of the CIT(A), the assessee preferred the present
appeal on the grounds mentioned above.
The Ld. Counsel for the assessee pressing on the ground No. 3
submitted that the authorities have not considered the submission
made by the assessee further the Ld. A.O. thereafter ld. CIT(A)
imposed/sustained penalty mainly on the ground of non
compliance of the notice issued u/s 133(6) of the Act to M/s
Swammi Ayyappa Agencies, Parthipadu, the notice u/s 133(6) has
not been issued to the complete/proper address of the parties,
therefore, the notice issued u/s 133(6) of the Act has not been
served on the addressee, thus, prayed for setting aside the matter to
the file of the A.O. for de-novo adjudication. The Ld. A.R. has also
made submission in writing.
Per contra, the Ld. Departmental Representative justified the
order of the A.O. and the CIT(A) prayed for dismissal of the present
appeal. Page 4 of 6
ITA No.2346/Del/2022 M/s Pearl Beverages Limited vs. ACIT 6. We have heard both the parties and perused the material
available on record. It is found from the record that the notice
issued u/s 133(6) of the Act to Swammy Ayappa Agencies has not
been complied. It is the specific case of the assessee that the
address of the party was incomplete wherein name of the village
and the city has been mentioned and not mentioned the proper
postal address of the party. The Ld. A.O. made observation that the
notice has been sent to the address provided by the assessee but no
address claim to have provided by the assessee. Therefore, in our
opinion, if the matter is remanded to the file of the A.O. with a
direction to issue notice u/s 133(6) of the Act to the party i.e. M/s
Swammi Ayappa Agencies, Prathipadu to its proper address and the
issue is adjudicated afresh a substantial justice would be rendered.
Thus, we partly allow Ground No. 3 of the assessee for statistical
purpose by remanding the matter to the file of A.O. with a direction
to issue notice u/s 133(6) of the Act to the correct address of the
party and adjudicate the matter afresh in accordance with law after
hearing the assessee.
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ITA No.2346/Del/2022 M/s Pearl Beverages Limited vs. ACIT 7. In the result, the Appeal of the assessee is partly allowed for
statistical purpose. Since, we have remanded the matter to the file
of the A.O., the issue on merit is kept open.
Order pronounced in open Court on 06th July, 2023.
Sd/- Sd/pSd/- Sd/- Sd/- Sd/- (SHAMIM YAHYA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 06/07/2023 Pk/R.N, Sr. ps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT, NEW DELHI
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