SHIVKRIPA SAHAKARI PATPEDHI LTD, MUMBAI V. DCIT RG 29(3),

ITA 1011/MUM/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0756 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 13-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 1011/MUM/2017 (ASSESSMENT YEAR: 2010-11) SHIVKRIPA SAHAKARI PATPEDHI LTD. LATE NAMODERAO PANTE SMRUTI BHAVAN, STATION ROAD VIKHROLI (E), MUMBAI 400083 VS. DCIT, RANGE - 29(3) MUMBAI PAN AAAAS3870K APPELLANT RESPONDENT APPELLANT BY: SHRI KISHOR PHADKE RESPONDENT BY: SHRI NISHANT SAMAIYA DATE OF HEARING: 04.10.2018 DATE OF PRONOUNCEMENT: 04.10.2018 O R D E R PER B.R. BASKARAN, AM THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 17.10.2016 PASSED BY THE CIT(A)-40, MUMBAI AND IT R ELATES TO A.Y. 2010- 11. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF TH E CIT(A) IN CONFIRMING THE PENALTY OF ` 28.00 LAKHS LEVIED BY THE AO UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT'). 2. THE ASSESSEE IS A CREDIT CO-OPERATIVE SOCIETY. THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80P OF THE ACT IN RESPECT O F INTEREST INCOME RECEIVED FROM BANKS AND INTEREST INCOME RECEIVED FR OM MUTUAL FUNDS. THE AO REJECTED THE SAID CLAIM. PENALTY WAS LEVIED BY T HE AO ON REJECTION OF DEDUCTION UNDER SECTION 80P OF THE ACT IN RESPECT O F THE TWO ITEMS DISCUSSED ABOVE. 3. WE HEARD THE PARTIES AND PERUSED RECORD. WE NOTICE D THAT THE LEARNED CIT(A) HAS CONFIRMED THE PENALTY ONLY FOR T HE REASON THAT THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION WITH REGARD TO THE DISALLOWANCE MADE BY THE AO. ITA NO. 1011/MUM/2017 SHIVKRIPA SAHAKARI PATPEDHI LTD. 2 4. THE LEARNED A.R. SUBMITTED THAT THE AO HAD MADE ID ENTICAL DISALLOWANCES IN EARLIER YEARS BUT HE DID NOT LEVY ANY PENALTY THEREON. FURTHER THE LEARNED AO PLACED RELIANCE ON THE DECIS ION RENDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF TOTGARS COOPER ATIVE SALE SOCIETY LTD. 229 CTR 209 IN SUPPORT OF HIS DECISION TO LEVY PENA LTY. THE LEARNED A.R. SUBMITTED THAT THE DECISION RENDERED BY THE HON'BLE SUPREME COURT IN THE ABOVE SAID CASE IS NOT APPLICABLE TO THE FACTS OF T HE PRESENT CASE. HE SUBMITTED THAT THE ASSESSEE WAS HAVING PROPER REASO NS FOR CLAIMING THE DEDUCTION U/S 80P OF THE ACT AGAINST THE TWO INCOME S REFERRED ABOVE. THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE WAS NOT PR OPERLY GUIDED IN THIS MATTER AND HENCE PROPER EXPLANATIONS WERE NOT GIVEN BEFORE THE TAX AUTHORITIES. ACCORDINGLY HE PLEADED THAT THE ASSESS EE MAY BE PROVIDED WITH ONE MORE OPPORTUNITY TO PRESENT PROPER EXPLANATIONS BEFORE THE TAX AUTHORITIES AGAINST LEVY OF PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT. 5. THE LEARNED D.R. STRONGLY SUPPORTED THE ORDER PASSE D BY THE LEARNED CIT(A). 6. HAVING HEARD THE RIVAL SUBMISSION WE ARE OF THE VIE W THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE MAY BE PR OVIDED WITH ONE MORE OPPORTUNITY TO OFFER EXPLANATIONS BEFORE THE TAX AU THORITIES AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ACCO RDINGLY WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE AO FOR EXAMINING IT AFRESH. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH OCTOBER, 2018. SD/ - SD/ - (RAVISH SOOD) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 4 TH OCTOBER, 2018 ITA NO. 1011/MUM/2017 SHIVKRIPA SAHAKARI PATPEDHI LTD. 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -40, MUMBAI 4. THE PR.CIT - 29, MUMBAI 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.