ITA No.752 of 2011 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ITA No.752 OF 2011 % DECISION DELIVERED ON: JULY 18, 2011 ALOK B. MATHUR . . . APPELLANT VERSUS APPEAL XXVIII . . .RESPONDENT Counsel for the Assessee: Mr. V.K. Sabharwal, Advocate. Counsel for the Revenue: Mr. N.P. Sahni, Sr. Standing Counsel. CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE M.L. MEHTA 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. (ORAL) 1. This appeal is preferred by the assessee against the orders dated 30.06.2010 passed by the Income Tax Appellate Tribunal (hereinafter referred to as ‘the Tribunal’) affirming the order of penalty levied under Section 271 (1) (c) of the Income Tax Act (for brevity ‘the Act’), which was affirmed by the Commissioner of Income Tax (Appeals) as well. The penalty came to be imposed under the following circumstances: ITA No.752 of 2011 Page 2 of 4 The assessee had filed income tax return in respect of Assessment Year 2001-02 declaring income of `1,24,94,515/-. The assessee had given loan which was not shown as income tax return. This could not be found in the regular assessment. However thereafter, the Assessing Officer (AO) received an information from the ITO Ward 9 (1), New Delhi indicating that Shri Rajesh Duggal, Managing Director of M/s. Spear Head Digital Studio Pvt. Ltd. had applied for shares. He arranged `35,00,000/- to enable him to apply for the said shares. This money was advanced as unsecured loan to Shri Rajesh Duggal and the assessee had not shown this loan in the income tax return. Notice under Section 148 was issued on 10.12.2007, as according to the AO, the aforesaid information reveals that income of `35 lacs had escaped assessment. 2. Pursuant thereto, the assessee filed income tax return declared at `35,45,980/- on asking explanation of sources of laon of `35 lacs given to Shri Rajesh Duggal. He submitted that he was unable to find old records and to gain peace of mind, he voluntarily surrendered the amount of `35 lacs for the Assessment Year 2001-02. In these circumstances, addition of `35 lacs was made. 3. Feeling aggrieved, the assessee challenged the aforesaid order before the CIT (A). Initially, the assessee submitted that he ITA No.752 of 2011 Page 3 of 4 had not filed any return on the counter. The proposed return was given to the AO during the assessment proceedings and this return could not be treated as filed under Section 148 read with Section 139(2) of the Act. According to the assessee, in the absence of return filed under Section 139(1), notice under Section 143(2) and 142(1) of the Act was not valid. The order should have been passed under Section 144 of the Act and not under Section 143(3) read with Section 147 of the Act. The CIT (A) rejected this contention on the ground that notice under Section 143(2) of the Act issued to the assessee was duly served upon and thereafter, this return was filed. The assessee also made an attempt to challenge the addition of `35 lacs on merits on the ground that he had sufficient cash balance in the bank account from where he could issue the cheque of `35 lacs. This ground was rejected by the CIT (A) on the ground that no such plea was ever raised before the AO. The assessee himself filed the return disclosing income of `35,45,980/- and even paid the tax partly under Section 140A of the Act. 4. Feeling aggrieved by the above decision of the CIT (A), the assessee approached the Tribunal. While dismissing the appeal, the Tribunal accepted the view of the CIT (A). ITA No.752 of 2011 Page 4 of 4 5. In the aforesaid circumstances, we are of the view that no question of law arises. This appeal is accordingly dismissed. (A.K. SIKRI) JUDGE (M.L. MEHTA) JUDGE JULY 18, 2011 pmc