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Income Tax Appellate Tribunal, [ DELHI BENCH: ‘E’ NEW DELHI ]
Before: SHRI ANIL CHATURVEDI & SHRI YOGESH KUMAR U.S.
PER YOGESH KUMAR U.S., JM
This appeal is filed by the assessee against the order dated 05/02/2019
of the ld. Commissioner of Income Tax (Appeals)-14, (hereinafter referred to CIT
(Appeals )Civic Centre, New Delhi, for assessment year 2010-11.
2 ITA No. 1968/Del/2020 Nirmala Devi Vs. ITO
The assessee has raised the following substantive ground of appeal :-
“1. That the order passed by the Ld. C1T (A) u/s 271C was incorrect, bad in law and void ah initio.
That the order passed by the Ld. C1T (A) u/s 271C was incorrect, bad in law as the notice issued under section 274 read with section 271 shows gross non-application of mind on part of AO while issuing the notice, evident from the fact that the irrelevant portions of the said notice have not been struck off, thereby also not clearly stating under which limb of section 271(1 )(c) the notice has been issued for i.e. for furnishing inaccurate particulars or for concealment of income. Hence, the notice was illegal and untenable in law.
That the order passed by the Ld. C1T (A) u/s 271C was incorrect, bad in law as the penalty order passed under section 271 (l)(c) suffers from gross negligence on part of the AO as the same has been issued for both the limbs of section 271 (1 )(c) i.e. for concealment of income and furnishing inaccurate particulars of income, thereby imposing the penalty under both the limbs of the section 271(1 )(c). Hence, the penalty order under section 271 (1 )(c) is illegal and untenable in law as the charge of penalty is not firm and shows non- application of mind and diffidence on part of the AO, thereby violating the principles of natural justice.
That the order passed by the Ld. C1T (A) u/s 271C was incorrect, bad in law it affirmed the order of the AO who had erred in facts and law since cash deposit of Rs. 36,23,000 have been made in a joint account, with appellant /assessee being the secondary
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account holder. The appellant / assessee was not operating the said account and hence have no relation whatsoever to the impugned unexplained cash deposits and therefore cannot be said to have concealed particulars or furnished inaccurate particulars of her income. 5. That the AO has erred in law and facts in imposing penalty under section 271(1 )(c) on the appellant in view of the facts and circumstances of the case.”
None appeared for the Assessee even after issuing notices several times
to the Assessee, considering the issues involved in the present Appeal, we
deem it fit to hear the Ld. DR and dispose of the present Appeal.
There is a delay of 625 days in filing the present Appeal. An application
for condonation of delay has been filed by the Assessee contending that the
‘Assessee came to know about the impugned order when the demand was
pressed by the Department, since the assessee is an old woman, she was not
aware of the circumstances which resulted in filing the Appeal belatedly’, thus
prayed for condoning the delay in filing the present Appeal. Considering the
above facts and circumstances and also considering the fact that the Assessee
had been given the relief in the quantum proceedings by remanding the matter
to the file of the A.O. and for the reason stated in the Application for
condonation of delay, the delay of 625 days in filing the present Appeal is
hereby condoned.
4 ITA No. 1968/Del/2020 Nirmala Devi Vs. ITO
We have heard the Ld. DR and perused the material on record. It is
brought to our notice that by the Ld. DR that in the quantum Appeal filed by
the Assessee, the Tribunal in ITA No. 1967/Del/2020 for Assessment Year
2010-11 vide order dated 09/12/2021, remanded the matter to the file of the
A.O. with a direction to the assessee to furnish necessary evidence to show
that the cash found to be deposited in the SB Account was that of the
Assessee’s son and further the A.O. is directed to examine the evidence and
decide the issue afresh giving sufficient opportunity of being heard to the
assessee.
Considering the above fact that in the quantum Appeal the matter has been
remanded to the file of Assessing Officer, the penalty order dated 25/05/2018
does not survive. Accordingly, the present appeal deserves to be allowed by
setting aside the penalty order. However, the A.O. is at liberty to pass fresh
penalty order in accordance with law after giving effect to the order of the ITA
No. 1967/Del/2020 in case the Assessing Officer deems fit.
In the result, the Appeal filed by the assessee is allowed. Order pronounced in the open court on : 11/05/2023.
Sd/- Sd/- ( ANIL CHATURVEDI ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 11/05/2023
*R.N, Sr. PS
5 ITA No. 1968/Del/2020 Nirmala Devi Vs. ITO