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Shri Pramod Kumar Singh, B-303, Sukh Sagar Apartments, 52, IP Extension, Delhi 110 092. Vs. Assistant Commissioner of Income Tax, Circle-Circle-36(1), New Delhi.
November, 18th 2014
                IN THE INCOME TAX APPELLATE TRIBUNAL
                                  `F' : NEW DELHI
                      DELHI BENCH `F

          BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND
                          SUDHIR, JUDICIAL MEMBER
                SHRI I.C. SUDHIR,

                             No.4919/Del/2013
                         ITA No.
                                         2008-09
                       Assessment Year : 2008-


Shri Pramod Kumar Singh,       Vs.    Assistant Commissioner of
B-303, Sukh Sagar                     Income Tax,
Apartments,                           Circle-
                                      Circle-36(1),
52, IP Extension,                     New Delhi.
Delhi ­ 110 092.
PAN : AAOPS8775J.
     (Appellant)                          (Respondent)

               Appellant by     :    Shri Tapas Kumar Misra, Advocate.
               Respondent by    :    Shri Vikram Sahay, Sr.DR.

                                ORDER
                                ORDER

PER G.D. AGRAWAL, VP :
      This appeal by the assessee is directed against the order of
learned CIT(A)-XXVII, New Delhi dated 29th May, 2013 for the AY 2008-
09.


2.    The only ground raised by the assessee is against the levy of
penalty under Section 271(1)(c) of the Income-tax Act, 1961 at
`2,87,273/-.





3.    At the time of hearing before us, it is submitted by the learned
counsel that earlier the assessee was in the employment of M/s
Morepen Laboratories Ltd. from whom the assessee has received full
and final settlement amount of `12,94,652/-. As per Assessing Officer,
out of this full and final settlement, the assessee has disclosed less
income of `7,80,716/-. He, therefore, made the addition for the same.
The assessee did not file appeal against the above order because as
per the TDS certificate issued by M/s Morepen Laboratories Ltd., the
                                   2                         ITA-4919/D/2013



taxable salary was disclosed at `9,44,652/-.    That subsequently, the
assessee asked M/s Morepen Laboratories Ltd. about the working of
the payment of full and final settlement at `12,94,652/- then it was
gathered that it included the leave encashment, LTCs encashment,
accumulation of superannuation amount etc. which are not taxable.
Thus, the working given by them in the TDS certificate was wrong and
assessee's belief that full and final settlement includes various items
which are not taxable was correct.       The learned counsel for the
assessee has produced the working of full and final settlement in his
paper book at page 25. He fairly admitted that the above working was
not given before the lower authorities because it was received by the
assessee subsequently.     He, therefore, submitted that the penalty
levied under Section 271(1)(c) may be cancelled.


4.    Learned DR, on the other hand, relied upon the orders of
authorities below and he stated that the addition has become final as
the assessee has not filed appeal against the said order. In the penalty
proceedings, without giving any details before the lower authorities,
the assessee cannot plead at this stage that the amount is not
chargeable to tax. He, therefore, submitted that the penalty levied by
the Assessing Officer may be sustained.      He alternatively submitted
that if at all the assessee's request is accepted, then the matter needs
to be set aside to the file of the Assessing Officer because the paper
which is claimed to be the working of full and final settlement was
never produced before the Assessing Officer and he did not get any
opportunity to examine the same.





5.    We have carefully considered the submissions of both the sides
and perused relevant material placed before us. After considering the
arguments of both the sides and the facts of the case, in our opinion, it
would meet the ends of justice if the orders of authorities below are set
aside and the matter is restored to the file of the Assessing Officer.
                                     3                           ITA-4919/D/2013



Though in the quantum proceedings, determination of income has
become final, in the penalty proceedings, the assessee has a right to
point out that the income for which addition is made is not chargeable
to tax. Therefore, in our opinion, it would be in the interest of justice to
allow one more opportunity to the assessee so that he can establish
before the Assessing Officer that the addition which has been made by
the Assessing Officer is in fact not chargeable as income from salary.
Accordingly, we restore the matter to the file of the Assessing Officer
and direct him to allow adequate opportunity of being heard to the
assessee.    The assessee is also directed to produce necessary
evidence and explanation before the Assessing Officer. Thereafter, the
Assessing Officer will pass the order in accordance with law.


6.    In the result, the appeal of the assessee is deemed to be allowed
for statistical purposes.
      Decision pronounced in the open Court on 14th November, 2014.


                   Sd/-                                   Sd/-
                 SUDHIR)
           (I.C. SUDHIR)                              AGRAWAL)
                                                (G.D. AGRAWAL)
         JUDICIAL MEMBER                        VICE PRESIDENT

Dated : 14.11.2014
VK.

Copy forwarded to: -

1.    Appellant    : Shri Pramod Kumar Singh,
                     B-303, Sukh Sagar Apartments,
                                                   092.
                     52, IP Extension, Delhi ­ 110 092.

2.    Respondent : Assistant Commissioner of Income Tax,
                   Circle-
                   Circle-36(1), New Delhi.
3.    CIT
4.    CIT(A)
5.    DR, ITAT

                               Assistant Registrar

 
 
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