SHRI AJAY MATHUR, AHMEDABAD V. INCOME TAX OFFICER, WARD-6-2, JAIPUR

ITA 1041/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6488 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA DHK
• Assessee Lawyers: AJAY MATHUR
• Keywords: Salary income
• Section: 271(1)(c); 142(1); 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1041/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 AJAY MATHUR, S/O- KOSHAL MATHUR, A-1/502, AAKASH NIDHI APARTMENT, TIMES OF INDIA, AHMEDABAD-380015. CUKE VS. INCOME TAX OFFICER WARD-6(2), JAIPUR. TAN/PAN NO.: ALWPM 5528 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI AJAY MATHUR (ASSESSEE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT-DR) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/01/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/01/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 12/06/2018 OF LD. CIT (A)-2, JAIPUR FOR THE A.Y. 200 8-09. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED C.I.T. (A) -2, JAIPUR GROSSLY ERRE D IN LAW AND ON FACTS IN UPHOLDING PENALTY U/S 271(1)(C) IN RESPECT OF SALAR Y OF RS. 5,77,716 SHOWN AS PER SALARY CERTIFICATE ISSUED BY THE EMPLO YER. 2. (I) THE LEARNED C.I.T. (A) -2, JAIPUR HAS ERRED IN NOT TAKING INTO CONSIDERATION SALARY CERTIFICATE DATED 30/03/2008 I SSUED BY ICICI BANK AS PER WHICH TOTAL INCOME IS OF RS. 3,56,080, THE TAX PAYABLE IS ITA 1041/JP/2018_ AJAY MATHUR VS ITO 2 OF RS. 57,498 AND TDS U/S 192 MADE BY THE EMPLOYER IS OF RS. 57,498. (II) THE LEARNED C.I.T. (A) -2, JAIPUR ERRED IN N OT TAKING INTO CONSIDERATION C.I.T. (A)S ORDER DATED 23/05/2018 F OR A.Y. 2008 - 09 AS PER WHICH DUPLICATION OF SALARY INCOME HAS BEEN DELETED AND THE GROSS SALARY INCOME OF RS. 5,77,716 HAS BEEN CONFI RMED. 3. THE LEARNED C.I.T. (A) -2, JAIPUR ERRED IN IGNOR ING THE FACT THAT THERE WAS NO OUTSTANDING TAX LIABILITY PAYABLE BY THE APP ELLANT BECAUSE EMPLOYER ON TOTAL INCOME OF RS. 3,56,080 HAD MADE T DS U/S 192 OF RS. 57,498 AND AS PER THE SALARY CERTIFICATE, TAX P AYABLE IS NIL. 4. THE LEARNED C.I.T. (A) -2, JAIPUR ERRED IN CONFI RMING THE PENALTY ON THE GROUND THAT RETURN OF INCOME HAD NEITHER BEEN F ILED U/S 139(1) NOR U/S 148 EVEN THOUGH THERE WAS NO OUTSTANDING TA X LIABILITY AND NO TAX HAD BEEN EVADED. 5. THE LEARNED C.I.T. (A) -2, JAIPUR ERRED IN CONFI RMING THE PENALTY EVEN THOUGH NO ADDITION HAD BEEN MADE TO THE TOTAL INCOM E OF THE APPELLANT SHOWN AS PER THE SALARY CERTIFICATE ISSUE D BY THE EMPLOYER. 6. THE LEARNED C.I.T. (A) -2, JAIPUR ERRED IN CONFI RMING THE PENALTY EVEN THOUGH NO CLEAR FINDING WHETHER THE ASSESSEE IS GUI LTY OF CONCEALING THE INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME WAS STATED IN THE SHOW CAUSE NOTICE DT.09/03/2016. [CIT VS. WHITEFORD INDIA LTD. 38 TAXMANN.COM 15 (G UJARAT)]. YOUR APPELLANT PRAYS FOR THE LEAVE TO ADD TO ALTER AND /OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING OF THE APPEAL. 2. THE ASSESSEE IS INDIVIDUAL AND DERIVES INCOME FRO M SALARY. SINCE THE ASSESSEE DID NOT FILE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION THEREFORE, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND PASSED THE ASSESSM ENT ORDER U/S 144 OF ITA 1041/JP/2018_ AJAY MATHUR VS ITO 3 THE ACT ON 09/3/2018 WHEREBY THE ASSESSING OFFICER H AS ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS. 10,26,099/- WHI CH IS AS PER THE DETAILS GIVEN IN 26AS. THE ASSESSING OFFICER HAS GIVEN THE F INDING THAT THE ASSESSEE HAS RECEIVED PAYMENT FROM ICICI BANK ON WH ICH A TDS OF RS. 1,01,482/- WAS DEDUCTED BY THE PAYER U/S 192B OF THE ACT AND 192A. ON APPEAL AGAINST THE ASSESSMENT ORDER, THE LD. CIT(A) FOUND THAT THERE WAS A MISTAKE IN THE 26AS WHEREBY THE SALARY OF THE ASSE SSEE WAS RS. 5,77,716/- AND NOT RS. 10,26,099/- AS CONSIDERED BY THE ASSESSING OFFICER. THE LD. CIT(A) AFTER TAKING CORRECT AMOUNT OF SALARY, DELETED THE BALANCE AMOUNT. THE ASSESSING OFFICER IN THE MEAN T IME INITIATED A PENALTY PROCEEDING U/S 271(1)(C) OF THE ACT AND LEV IED THE PENALTY AGAINST THE ENTIRE ADDITION OF RS. 10,26,099/-. ON FURTHER APPEAL BY THE ASSESSEE AGAINST THE LEVY OF PENALTY U/S 271(1)(C) OF THE AC T, THE LD. CIT(A) HAS RESTRICTED THE AMOUNT ONLY TO THE EXTENT OF SALARY INCOME OF RS. 5,77,716/-. 3. BEFORE US, THE ASSESSEE HAS APPEARED IN PERSON A ND SUBMITTED THAT THE TOTAL INCOME OF THE ASSESSEE IS COMPRISING OF S ALARY INCOME ONLY WHICH IS SUBJECTED TO TDS U/S 192 OF THE ACT AND THEREFORE , THERE WAS NO TAX LIABILITY AFTER THE ORDER OF THE LD. CIT(A) PASSED I N THE QUANTUM APPEAL. THE ASSESSEE HAS REFERRED TO THE ORDER DATED 23/5/20 18 PASSED BY THE LD. ITA 1041/JP/2018_ AJAY MATHUR VS ITO 4 CIT(A) WHEREBY THE ADDITION WAS DELETED BY CONSIDERIN G THE CORRECT AMOUNT OF SALARY INCOME OF RS. 5,77,716/- RECEIVED FROM ICICI BANK. THE ASSESSING OFFICER ALSO ACCEPTED THE SAME IN THE REM AND REPORT THAT INCORRECT AMOUNT WAS SHOWN IN THE 26AS. THUS, THE LD A R HAS SUBMITTED THAT WHEN THERE WAS NO TAX LIABILITY ARISING FROM TH E ASSESSMENT ORDER THEN THERE SHALL NOT BE ANY PENALTY U/S 271(1)(C) O F THE ACT. THE ASSESSEE HAS ALSO OBJECTED TO THE VALIDITY OF THE NOTICE ISS UED U/S 274 OF THE ACT AND CONSEQUENTIAL ORDER PASSED U/S 271(1)(C) OF THE ACT WHEN THE ASSESSING OFFICER HAS NOT SPECIFIED THE GROUND ON W HICH THE PENALTY WAS PROPOSED TO BE LEVIED. 4. ON THE OTHER HAND, THE LD. CIT-DR HAS SUBMITTED THAT SINCE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME, THEREF ORE, IT IS CASE OF CONCEALMENT OF INCOME AS NOT DISCLOSED BY THE ASSES SEE IN THE RETURN OF INCOME. HE HAS RELIED UPON THE ORDERS OF THE AUTHOR ITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT THE I NCOME ASSESSED TO TAX BY THE ASSESSING OFFICER IN PURSUANT TO THE ORDER O F THE LD. CIT(A) DATED 23/5/2018 IN QUANTUM APPEAL IS NOTHING BUT THE SALA RY INCOME OF THE ASSESSEE, WHICH WAS SUBJECTED TO TDS U/S 192 OF THE A CT. THE RELEVANT PART OF THE ORDER OF THE LD. CIT(A) IN QUANTUM APPEA L IS AS UNDER: ITA 1041/JP/2018_ AJAY MATHUR VS ITO 5 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND :-E SUBMISSIONS OF THE APPELLANT, BASED ON INFORMATION AVAILABLE WITH THE ASSESSING OFFICER REGARDING RECEIPTS OF RS. 10,26,0 99/- BY THE APPELLANT AND SINCE NO RETURN WAS FILED, NOTICE UNDER SECTION 148 WAS ISSUED. THE NOTICES COULD NOT BE SERVED ON THE ADDRESS AVAILABL E AND THE SAME WERE RETURNED BACK BY THE POSTAL DEPARTMENT. FINALLY, IN FORMATION WAS SOUGHT BY INFORMING THE APPELLANT ON E-MAIL ADDRESS APPEARING IN THE AST AS PER RETURN FILED FOR A.Y. 2014-15, BUT THERE WAS NO COMPLIANCE AND ASSESSMENT WAS COMPLETED UNDER SECTION 144 READ WITH 147 ON A TOTAL INCOME OF RS. 10,26,100/-. IN THE PRESENT PROCEEDINGS, IT WAS SUBMITTED THAT THE APPELLANT WAS AN INDIVIDUAL SERVING IN ICICI BANK AND IN THE FORM 26 AS SOME ENTRIES WERE ENTERED TWICE AND AMOUNT OF RS. 10,26,100/- WAS REF LECTED WHEREAS AS PER FORM 16 AND CERTIFICATE ISSUED BY ICICI BANK, T OTAL SALARY WAS RS. 5 77 716/-. CONSIDERING THE ENTIRE FACTS, THE DETAILS WERE FOR WARDED TO THE ASSESSING OFFICER AND A REMAND REPORT CALLED FOR. IN THE REMA ND REPORT DATED 05/04/2018, THE ASSESSING OFFICER HAS MENTIONED AS FOLLOWS: 'KINDLY REFER YOUR OFFICE LETTER NO. 3036 DATED 18. 01.2018 ON THE SUBJECT CITED ABOVE. 2. IN THIS REGARD , IT IS SUBMITTED THAT IN THIS CASE ASSESSMENT UNDER SECTION 144 OF THE IT ACT WAS MADE AFTER AFFORDING REASONABLE OPPORTUN ITIES TO THE ASSESSEE AS DETAILED BELOW. S. NO. LETTER DATE SECTION UNDER WHICH NOTICE ISSUE D 1. DATED 28/03/2015 U/S 148 2. DATED 07/07/2015 142(1) 3. 11/01/2016 LETTERS/148 WERE SENT AT THE NEW ADDRESS/E-MAIL 4. 25/02/2016 142(1) 3. IT IS FURTHER SUBMITTED THAT ALL THE ABOVE NOTIC ES WERE SENT THROUGH SPEED POST AT THE ADDRESSES/E-MAIL AVAILABLE ON RECORD. THUS, THE ASSESSEE'S CONTENTION THAT NO OPPORTUNITY WAS GIVEN, IS INCORRECT. FURTHER DUE TO NON-COMPLIANCE ON THE PART OF THE ASSESSEE, ASSESSMENT WAS MADE ON BASIS OF DETAI LS AVAILABLE IN 26AS AS PER ITA 1041/JP/2018_ AJAY MATHUR VS ITO 6 WHICH THE ASSESSEE HAS RECEIVED PAYMENT OF RS. 10,2 6,099/- FROM ICICL BANK LTD. ON WHICH TDS OF RS. 1,01,482/- WAS DEDUCTED. 4. NOW, THE ASSESSEE HAS FILED FORM 16, COPY OF CE RTIFICATE ISSUED BY THE EMPLOYER CERTIFYING GROSS SALARY INCOME AND TDS DEDUCTED THE REON AND COPY OF BANK STATEMENT OF THE ACCOUNT HELD WITH ICICL BANK IN YO UR OFFICE. IT IS SEEN THAT DOUBLE ENTRIES OF SAME AMOUNTS CREDITED IN ASSESSEE'S ACCO UNT ON SAME DATE, ARE APPEARING IN 26AS DETAILS OF ITS DATA DUE TO WHICH THE TOTAL AMOUNT CREDITED GOT INC REASED THAN THE ACTUAL RECEIPTS OF ME ASSESSEE. FURTHER, I T IS APPARENT FROM THE FORM 16 AND THE CERTIFICATE ISSUED BY THE EMPLOYER BANK OF THE ASSESSEE CERTIFYING THEREIN THE GROSS SALARY INCOME RECEIVED AND TDS DEDUCTED THEREON THAT ACTUAL RECEIPTS OF THE ASSESSEE DURING THE YEAR WAS OF RS. 5,77,716/- AND TDS DEDUCTED THEREON WAS OF RS. 57,498/-. IN VIEW OF THE ABOVE, THE SALARY INCOME O F RS. 5,77,716/- MAY BE ACCEPTED AS HIS TOTAL INCOME. SUBMITTED PLEASE. IN VIEW OF THE FACTUAL POSITION AS REPORTED BY THE ASSESSING O FFICER, THE SALARY INCOME OF RS. 5,77,716/- IS TAKEN AS THE INC OME OF THE APPELLANT AND BALANCE ADDITION IS DELETED. GROUND OF APPEAL I S PARTLY ALLOWED. THUS, IT IS CLEAR THAT THE ASSESSING OFFICER IN THE REMAND REPORT ITSELF FOUND THE FACTUAL POSITION THAT THE SALARY INCOME O F THE ASSESSEE DURING THE YEAR IS RS. 5,77,716/- WHICH WAS SUBJECTED TO TDS U/S 192 OF THE ACT. THE SAID SALARY INCOME WAS RECEIVED FROM ICICI BANK. ONCE THE ENTIRE INCOME OF THE ASSESSEE IS ONLY FROM SALARY AND ADVA NCE TAX WAS PAID ON THE SAME AND NO FURTHER DEMAND IS ARISING EVEN THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ASSESSMENT ORDER UNDER CONSIDER ATION EX PARTE U/S 147 OF THE ACT. THEREFORE, HAVING REGARD TO THE FAC TS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEES ENTIRE INCOME WAS SUBJECTED TO TDS AT THE AVERAGE RATE U/S 192 OF THE ACT AND NO FURTHER TAX LIABILITY HAS ARISEN DUE TO THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER T HEN IT MAY BE A CASE OF DEFAULT MADE BY THE ASSESSEE FOR NOT FILING THE RETURN OF INCOME BUT IT ITA 1041/JP/2018_ AJAY MATHUR VS ITO 7 CANNOT BE A CASE OF CONCEALMENT OF INCOME AS THERE IS NO SUBSEQUENT DEMAND OVER AND ABOVE THE ADVANCE TAX PAID BY THE A SSESSEE. MERELY BECAUSE THE ASSESSEE HAS NOT FILED THE RETURN OF IN COME WHEN THERE IS NO DEMAND OF TAX BY VIRTUE OF THE ASSESSMENT ORDER WOUL D NOT IPSO FACTO ATTRACT THE PENALTY U/S 271(1)(C) OF THE ACT. THE PE NALTY HAS TO BE LEVIED EQUIVALENT TO THE SUM WHICH SHALL NOT BE LESS THAN B UT SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED B Y REASON OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THOUGH THE ASSESSEE HAS NOT FILED ANY RE TURN OF INCOME, HOWEVER, THAT HAS NOT RESULTED ANY TAX SOUGHT TO BE EVADED BECAUSE OF THE REASON THAT THE ENTIRE DUE TAX WAS ALREADY PAID IN ADVANCE AS THE TDS WAS DEDUCTED U/S 192 OF THE ACT. THIS FACT IS NOT IN DISPUTE, THEREFORE, THE ASSESSEE BEING A SALARIED PERSON AND ALREADY PAID T HE ENTIRE TAX IN ADVANCE, CANNOT BE PENALIZED U/S 271(1)(C) OF THE A CT FOR NOT FILING THE RETURN OF INCOME WHEN THERE IS NO TAX LIABILITY ARIS ING EVEN BY PASSING THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. THE ASSES SEE MAY BE LIABLE FOR THE PENALTY FOR NOT FILING OF RETURN OF INCOME BUT CANNOT BE PENALIZED U/S 271(1)(C) OF THE ACT. ACCORDINGLY, IN FACTS AND CIR CUMSTANCES, IT IS NOT A CASE OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE THA N MERELY BECAUSE THE ASSESSEE HAS NOT FILED THE RETURN OF IN COME WILL NOT ATTRACT THE PENALTY PROVISIONS U/S 271(1)(C) OF THE ACT. THE MANDATORY ITA 1041/JP/2018_ AJAY MATHUR VS ITO 8 CONDITION FOR LEVY OF PENALTY IS FURNISHING OF INAC CURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME RESULTING DUE TAX S OUGHT TO BE EVADED. THEREFORE, IN ABSENCE OF ANY TAX SOUGHT TO BE EVADED MERELY BECAUSE NOT FILING THE RETURN OF INCOME WILL NOT ATTRACT THE PEN ALTY PROCEEDINGS. HENCE, THE PENALTY LEVIED U/S 271(1)(C) IS DELETED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH JANUARY, 2019. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI AJAY MATHUR, AHMEDABAD. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO WARD-6(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1041/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR