Mr. Pradeep Kumar Gupta,A-179, Naya Bans,New Delhi-110006. Vs. Income-tax Officer,Ward 28(1), New Delhi.
December, 15th 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `F': NEW DELHI
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND
SHRI B.C. MEENA, ACCOUNTANT MEMBER
Assessment Year : 2006-07
Mr. Pradeep Kumar Gupta, Income-tax Officer,
A-179, Naya Bans, Vs. Ward 28(1), New Delhi.
New Delhi-110006. PAN : AHTPG8488L
Appellant by : Shri Manu Giri, Advocate.
Respondent by : Shri Rajesh Kumar Kadia, Sr. DR.
Date of hearing : 13-12-2012
Date of Pronouncement : 13-12-2012
PER JOGINDER SINGH, JUDICIAL MEMBER
The assessee is aggrieved by the impugned order dated 30-11-2011
passed by the learned First Appellate Authority, New Delhi. The only
ground raised by the assessee is that on the facts and in the circumstances of
the case, the learned CIT(A) was not justified in confirming the penalty of
Rs.29,918/- imposed under sec. 271(1)(c) of the Income-tax Act, 1961 (the
Act), particularly when the necessary evidences were adduced by the
assessee and the payment made to old sundry creditors was added in the
assessment, being the amount surrendered by the assessee for taxation,
2 ITA No.263/Del/2012
subject to no penalty and also to buy peace with the Department as the
amount was not confirmed with the credit.
2. During hearing we have heard Shri Manu Giri, learned counsel for the
assessee and Shri Rajesh Kumar Kadia, learned Sr.DR. The crux of
arguments on behalf of the assessee is identical to the ground raised by
further submitting that due to some dispute with M/s. Ramjilal & Sons, they
did not cooperate with the assessee and the surrender was made with a
condition that no penalty will be imposed upon the assessee, whereas the
learned Sr. DR defended the imposition as well as confirmation of penalty.
3. We have considered the rival submissions and perused the material
available on record. The facts in brief are that the assessee was doing
business of trading in sugar and food-grains, declared income of
Rs.1,21,226/- in his return filed on 30th October, 2006. The case was
selected for scrutiny on random basis in CASS. Pursuance to notices issued
by the Department the assessee appeared from time to time and filed
necessary details. The assessee also produced books of accounts and
vouchers which were test-checked by the Assessing Officer. The assessee
declared turnover of Rs.54,22,137/- and showed the gross profit at
Rs.1,55,551/-. The books of accounts of the assessee are also audited.
During verification of books it was noted that in the account of the assessee
3 ITA No.263/Del/2012
in the case of M/s. Ramjilal & Sons, the correct position was not reflected.
As per the Revenue there was no opening balance of the assessee in the
books of M/s. Ramjilal & Sons, whereas the assessee debited sum of
Rs.75,000/- by cheque No.61487 and another amount of Rs.74,999/- by
cheque No.61488. As per the Bank Statement, the assessee withdrew these
amounts in cash. When the assessee was confronted as the figure is not
reflected in the books of M/s. Ramjilal & Sons, the assessee agreed for the
disallowance and surrendered the same for taxation. The Assessing Officer
initiated penalty proceedings under sec. 271(1)(c) of the Act. As per the
version of the assessee the surrender was made simply to buy peace with the
Department and consequently, did not prefer any further appeal. It was also
pleaded that the surrender was made on the assurance of the Department that
no penalty will be levied. We find that the assessee in his written
submissions has also specifically mentioned that the addition was agreed
simply to buy peace and to avoid litigation (Page 4 of the Paper Book). At
Page 5 also (Para 3.3 of the written submissions) of the Paper Book it has
specifically been mentioned that the concurrence of addition was made with
the condition that no penalty will be imposed on the assessee and thus, the
imposition is (as per the assessee) is breach of trust. The assessee has also
placed reliance on various judicial pronouncements in his written
4 ITA No.263/Del/2012
submissions. Under the peculiar facts of the case, the assertion made by the
learned counsel for the assessee, and also keeping in view the small amount
of penalty involved, we direct to delete the same.
4. Finally, the appeal of the assessee is allowed.
5. This order was pronounced in the Open Court in the presence of the
learned representatives from both sides at the conclusion of the hearing on
13th December, 2012.
( B.C. MEENA) (JOGINDER SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 13th December, 2012.
Copy of the order forwarded to:-
*mg Deputy Registrar, ITAT.