R.Balamani, Tiruppur V. ITO, Tiruppur

CO 198/CHNY/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2772 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 22-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T BANUSEKAR
• Assessee Lawyers: SUPRIYO PAL
• Keywords: Wrong claim

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC B BENCH, CHENNAI . , !' BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2737/MDS/2016 ( / ASSESSMENT YEAR: 2010-11 & CO NO.198/MDS/2016 THE INCOME TAX OFFICER, 121, ADAMS PLAZA, 60 FEET ROAD, P.N. ROAD, TIRUPUR 641 602 VS SMT. R. BALAMANI, NO.1, CHINNAPPA NAGAR, TSR LAYOUT, KONGU MAIN ROAD, TIRUPUR 641 607 PAN: AHWPB5014A ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI SUPRIYO PAL, JCIT /RESPONDENT BY : SHRI T. BANUSEKAR, CA ! /DATE OF HEARING : 15.02.2017 '# ! /DATE OF PRONOUNCEMENT : 22.02.2017 / O R D E R THIS APPEAL IS FILED BY THE REVENUE AND THE CROSS O BJECTION IS FILED BY THE ASSESSEE WITH RESPECT TO THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-3, COIMBATORE DATED 29.06.2 016 IN ITA NO.263/15-16 FOR THE ASSESSMENT YEAR 2010-11 PASSED U/S. 271(1)(C) OF THE ACT. 2. THE REVENUE HAS FILED THE APPEAL WITH A DELAY OF 26 DAYS. THE LD. DR SUBMITTED THAT THE FILE WAS MISPLACED DUE TO WHI CH THE DELAY HAD 2 I.T.A. NO.2737/MDS/2016 & CO NO.198/MDS/2016 OCCURRED, HE FURTHER PLEADED THAT THE DELAY MAY BE CONDONED AND THE APPEAL MAY BE TAKEN UP FOR HEARING. THE LD. AR ALS O PLEADED THAT THERE WAS A DELAY OF 12 DAYS IN FILING THE APPEAL DUE TO THE LAPSE OF HER ACCOUNTANT AND THE SAME MAY BE CONDONED. CONSIDER ING THE PRAYER OF THE LD. DR AND THE LD. AR, I HEREBY CONDONE THE DEL AY OF IN FILING THE APPEAL BY BOTH THE PARTIES. 3. THE REVENUE HAS RAISED TWO GROUNDS IN ITS APPEAL , HOWEVER THE CRUX OF THE ISSUE IS THAT THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY LEVIED BY THE LD. AO U/S. 271(1)(C) OF THE ACT. TH E ASSESSEE HAS ALSO IN HER CROSS OBJECTION RAISED A GROUND THAT THE LD. AO ERRONEOUSLY LEVIED PENALTY AT 1 TIMES OF THE TAX SOUGHT TO BE EVADED INSTEAD OF 100% OF THE TAX SOUGHT TO BE EVADED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL EARNING INCOME UNDER THE HEAD HOUSE PROPERTY AND OT HER SOURCES, FILED HER RETURN OF INCOME ON 28.03.2011 ADMITTING TOTAL INCOME OF RS.2,18,520/-. SUBSEQUENTLY, THE ASSESSMENT WAS RE OPENED AND THEREAFTER ASSESSMENT WAS COMPLETED U/S.143 (3) R.W .S. 147/148 OF THE ACT ON 10.03.2015 WHEREIN THE LD. AO ASSESSED MADE ADDITION OF RS.36,34,089/- TOWARDS SHORT TERM CAPITAL GAIN. TH E ASSESSEE HAD SHOWN THE CAPITAL GAIN AS EXEMPT U/S.10(38) OF THE ACT IN HER BELATED 3 I.T.A. NO.2737/MDS/2016 & CO NO.198/MDS/2016 RETURN FILED ON 28.03.2011. THE LD. AO OPINED THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HER INCOME AS WELL AS FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND THEREFORE LEVIED PEN ALTY OF RS.16,35,340/- BEING 1 TIMES OF THE AMOUNT OF TAX SOUGHT TO BE EV ADED BY INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. ON APP EAL, THE LD. CIT(A) DELETED THE PENALTY LEVIED BY THE LD. AO, BECAUSE T HE ASSESSEE HAD ONLY WRONGLY CLAIMED THE CAPITAL GAIN EXEMPT U/S. 10(38) OF THE ACT AND THEREFORE THERE WAS NO CONCEALMENT OF INCOME. AGGR IEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 5. BEFORE US THE LD. DR VEHEMENTLY ARGUED IN SUPPOR T OF THE ORDER OF THE LD. AO BY STATING THAT THE ASSESSEE HAD WILLFUL LY CONCEALED THE INCOME BY FURNISHING INACCURATE PARTICULARS OF INCO ME. IT WAS THEREFORE PLEADED THAT THE ORDER OF THE LD.AO MAY BE CONFIRME D. THE LD. AR ON THE OTHER HAND, PLEADED THAT THE ASSESSEE HAD DISCL OSED HER INCOME IN THE RETURN BUT HAD ONLY INADVERTENTLY CLAIMED EXEMP TION U/S. 10(38) OF THE ACT WHICH WAS A MISTAKE COMMITTED BY HER ACCOUN TANT. HE THEREFORE PLEADED THAT THE ASSESSEE SHOULD NOT BE PENALIZED F OR THE WRONG CLAIM OF EXEMPTION. HE FURTHER ARGUED BY STATING THAT TH E ENTIRE FACT WITH RESPECT TO THE EARNING OF INCOME WAS DISCLOSED IN T HE RETURN OF INCOME. 4 I.T.A. NO.2737/MDS/2016 & CO NO.198/MDS/2016 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE, I T IS EVIDENT THAT THE ASSESSEE HAD DISCLOSED HER INCOME IN HER RETURN; HE NCE THERE CANNOT BE CONCEALMENT OF INCOME. FURTHER, ALL THE PARTICULAR S OF INCOME OF THE ASSESSEE IS ALSO FURNISHED. HOWEVER, THE ASSESSEE HAD ONLY CLAIMED DEDUCTION U/S. 10(38) OF THE ACT BY IGNORANCE ON HE R PART OR IT BEING A MISTAKE COMMITTED BY HER ACCOUNTANT. AT THIS JUNCT URE, WE ARE REMINDED OF THE CASE M/S.PRICE WATER HOUSE COOPERS PVT. LTD. VS. CIT & OTHERS REPORTED IN 348 ITR 306 WHEREIN THE HONBLE APEX CO URT OBSERVED THE FACTS AND DECIDED THE CASE AS FOLLOWS: THE FACTS OF THE CASE WERE PECULIAR AND SOMEWHAT UNIQUE. ALL THAT HAD HAPPENED WAS THAT THROUGH A BONAFIDE A ND INADVERTENT ERROR, THE ASSESSEE WHILE SUBMITTING IT S RETURN FAILED TO ADD THE PROVISIONS FOR GRATUITY TO ITS TOTAL INC OME. THE ASSESSEE SHOULD HAVE BEEN CAREFUL BUT THE ABSENCE O F DUE CARE, IN A CASE SUCH AS THE PRESENT, DID NOT MEAN T HAT THE ASSESSEE WAS GUILTY OF EITHER FURNISHING INACCURATE PARTICULARS OR ATTEMPTING TO CONCEAL ITS INCOME. ON PECULIAR FACT S OF THIS CASE, THE IMPOSITION OF PENALTY ON THE ASSESSEE WAS NOT J USTIFIED THE CASE OF THE ASSESSEE IS ALSO SOMEWHAT SIMILAR T O THE CASE DECIDED BY THE HONBLE APEX COURT SUPRA. THEREFORE , I AM OF THE CONSIDERED VIEW THAT THE LD. CIT(A) HAS RIGHTLY DEL ETED THE ADDITION MADE BY THE LD. AO. 5 I.T.A. NO.2737/MDS/2016 & CO NO.198/MDS/2016 7. SINCE, I HAVE DELETED THE PENALTY LEVIED BY THE LD. AO, THE CO RAISED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE AS WE LL THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22 ND FEBRUARY, 2017. SD/- ( . ) (A. MOHAN ALANKAMONY) ! / ACCOUNTANT MEMBER $% /CHENNAI, &' /DATED 22 ND FEBRUARY, 2017 JR. ' )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , ( )/CIT(A) 4. , /CIT 5. *-. / /DR 6. .0 /GF.