Family Health Plan (TPA) Ltd., CHENNAI V. ACIT, CHENNAI

CO 137/CHNY/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2489 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 16-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T BANUSEKAR
• Assessee Lawyers: SUPRIYO PAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !.. # $%, ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.1233/MDS/2016 & C.O. NO. 137/MDS/2016 (IN I.T.A. NO.1233/MDS/2016) + ,+ / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 2(1), CHENNAI - 600 034. V. M/S FAMILY HEALTH PLAN (TPA) LTD., BLOCK G, III FLOOR, ALI TOWERS, 22, GREAMS ROAD, CHENNAI - 600034. PAN : AAACF 1740 R (.// APPELLANT) ( RESPONDENT & CO-OBJECTOR) ./ 0 1 / APPELLANT BY : SHRI SUPRIYO PAL, JCIT 23./ 0 1 / RESPONDENT BY : SHRI T. BANUSEKAR, CA # 0 4' / DATE OF HEARING : 17.10.2016 56, 0 4' / DATE OF PRONOUNCEMENT : 23.11.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 6, CHENN AI, DATED 24.02.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2 I.T.A. NO.1233/MDS/16 C.O. NO.137/MDS/16 2. SHRI SUPRIYO PAL, THE LD. DEPARTMENTAL REPRESENT ATIVE, SUBMITTED THAT WHILE FILING THE RETURN OF INCOME, T HE ASSESSEE HAD NOT DISCLOSED A SUM OF ` 1 CRORE. THE ASSESSING OFFICER, ON EXAMINATION, FOUND THAT TDS CREDIT STATEMENT FILED IN FORM 26AS DOES NOT TALLY WITH THE INCOME DISCLOSED BY THE ASS ESSEE. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THA T THERE WAS CLERICAL ERROR IN OFFERING THE INCOME. THE ASSESSE E VOLUNTARILY OFFERED THE DIFFERENCE OF ` 1 CRORE. SINCE THE ASSESSEE HAS NOT FURNISHED THE PARTICULARS OF INCOME, THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. REFERR ING TO THE ORDER OF THE CIT(APPEALS), THE LD. D.R. SUBMITTED THAT THE C IT(APPEALS), HOWEVER, DELETED THE PENALTY ON THE GROUND THAT IT IS ONLY AN INADVERTENT OMISSION ON THE PART OF THE ASSESSEE. ACCORDING TO THE LD. D.R., IT IS NOT AN INADVERTENT OMISSION; IT IS A CONSCIOUS CONCEALMENT OF INCOME BY THE ASSESSEE, THEREFORE, T HE PENALTY HAS TO BE LEVIED. 3. ON THE CONTRARY, SH. T. BANUSEKAR, THE LD. REPRE SENTATIVE FOR THE ASSESSEE, SUBMITTED THAT IT IS NOT A CONSCIOUS CONCEALMENT. THE ASSESSEE, IN FACT, OFFERED A SUM OF ` 22,15,833/- INSTEAD OF ` 1,22,15,833/-. EVEN THOUGH TDS WAS DEDUCTED AND TH E SAME WAS 3 I.T.A. NO.1233/MDS/16 C.O. NO.137/MDS/16 REFLECTED IN FORM 26AS, THE ASSESSEE HAS NOT CLAIME D ANY CREDIT FOR TDS. THEREFORE, IT IS AN INADVERTENT OMISSION. RE FERRING TO THE JUDGMENT OF APEX COURT IN PRICE WATERHOUSE COOPERS PVT. LTD. V. CIT (2012) 348 ITR 306, THE LD. REPRESENTATIVE SUBM ITTED THAT A HUMAN ERROR HAS HAPPENED IN THE PRESENT CASE. IT I S A BONA FIDE INADVERTENT ERROR. HAD THE ASSESSEE INTENDED TO CO NCEAL THE INCOME, IT WOULD NOT HAVE DISCLOSED ` 22,15,833/- AND IT WOULD HAVE CLAIMED CREDIT FOR TDS AMOUNT ALSO. ADMITTEDLY, TH E TDS CREDIT WAS NOT CLAIMED AND THE ASSESSEE DISCLOSED ` 22,15,833/- INSTEAD OF ` 1,22,15,833/-. THEREFORE, ACCORDING TO THE LD. REP RESENTATIVE, THE CIT(APPEALS) HAS RIGHTLY DELETED THE PENALTY. 4. REFERRING TO THE NOTICE ISSUED BY THE ASSESSING OFFICER FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS NOT SPECIFIED WHETHER HE IS GOING TO LE VY PENALTY FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS. REFERRING TO THE JUDGMENT OF KARNATAKA HIGH COURT I N SAFINA HOTELS PVT. LTD. V. CIT IN ITA NO.240/2010 DATED 25.01.201 6, THE LD. REPRESENTATIVE SUBMITTED THAT IN SUCH A FACTUAL SIT UATION, THE 4 I.T.A. NO.1233/MDS/16 C.O. NO.137/MDS/16 KARNATAKA HIGH COURT FOUND THAT THERE CANNOT BE ANY PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE PENALTY WAS LEVIED FOR NON-DISCLOSURE OF ` 1 CRORE. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS DISCLOSED ` 22,15,833/- INSTEAD OF ` 1,22,15,833/-. THE ASSESSEE HAS ALSO NOT CLAIMED CREDIT FOR THE TA X DEDUCTED AT SOURCE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT IT IS AN INADVERTENT MISTAKE ON THE PART OF THE ASSESS EE IN DISCLOSING THE INCOME. AS RIGHTLY SUBMITTED BY THE LD. REPRES ENTATIVE FOR THE ASSESSEE, IF THE INTENTION OF THE ASSESSEE WAS TO C ONCEAL THE INCOME, THEN IT WOULD NOT HAVE DISCLOSED THE AMOUNT OF ` 22,15,833/- AND ALSO WOULD HAVE CLAIMED CREDIT FOR THE TDS. TH E FACT THAT THE TDS CREDIT WAS NOT CLAIMED CLEARLY SHOWS THAT AN IN ADVERTENT MISTAKE WAS DONE BY THE ASSESSEE IN DISCLOSING THE AMOUNT OF ` 22,15,833/- INSTEAD OF ` 1,22,15,833/-. THEREFORE, THE CIT(APPEALS) BY RIGHTLY PLACING RELIANCE ON THE JUDGMENT OF APEX COURT IN PRICE WATERHOUSE COOPERS PVT. LTD. (SUPRA), DELETED THE P ENALTY. THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRM ED. 5 I.T.A. NO.1233/MDS/16 C.O. NO.137/MDS/16 5. IN VIEW OF THE ORDER OF THE TRIBUNAL IN REVENUE S APPEAL, THE CROSS-OBJECTION OF THE ASSESSEE BECOMES INFRUCTUOUS . 6. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AN D THE CROSS- OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 23 RD NOVEMBER, 2016 AT CHENNAI. SD/- SD/- ( ! . . # $% ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 8 /DATED, THE 23 RD NOVEMBER, 2016. KRI. 0 24$9 :9,4 /COPY TO: 1. ./ /APPELLANT 2. 23./ /RESPONDENT 3. # ;4 () /CIT(A)-6, CHENNAI 4. PRINCIPAL CIT-2, CHENNAI 5. 9< 24 /DR 6. !+ = /GF.