SMITA NARENDRA PANANI, MUMBAI V. ACIT 25(3), MUMBAI

ITA 1169/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9482 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 20-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Bonafide mistake
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E, MU MBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.1169/MUM/2017 (ASSESSMENT YEAR- 2012-13) SMT. SMITA NARENDRA PANANI 701, PARSHWA KUNJ, MALVIYA ROAD, VILE PARLE (EAST), MUMBAI-40057. PAN: AAOPP2321B VS. ACIT 25-3, MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAFUL H. JAIN WITH DIVESH P. JAIN (AR) REVENUE BY : SHRI V. JUSTIN (DR) DATE OF HEARING : 23.08.2017 DATE OF PRONOUNCEMENT : 29.09.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF THE IN COME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-37, MUMBAI DATED 22.12.2016 FOR THE ASSESSMENT YEAR (AY) 2012-13. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL . GROUND NO 1: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED CIT(A) ERRED IN CONFIRMING ORDER OF THE ASSISTANT COMMISSIONER O F INCOME TAX - 25(3) ('AO') WHICH WAS PASSED AGAINST THE PRINCIPLE OF NA TURAL JUSTICE. GROUND NO 1: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY OF RS 1,77,405 L EVIED UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (ACT) BY THE AO ON ADDITION ON ACCOUNT OF INTEREST ON INCOME TAX REFUND. ITA NO.1169/M/20 17- SMT. SMITA NARENDRA PANANI 2 2. BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCO ME WAS FILED FOR RELEVANT AY ON 31.08.2012 DECLARING TOTAL INCOME AT RS. 3,40 ,21,132/-. THE ASSESSMENT WAS COMPLETED ON 31.03.2015 UNDER SECTIO N 143(3) OF THE ACT DETERMINING THE ASSESSED INCOME AT RS. 3,45,95,260/ -. THE ASSESSING OFFICER (AO) WHILE PASSING THE ASSESSMENT ORDER MADE THE AD DITION OF RS. 5,47,128/- ON THE BASIS OF AIR INFORMATION, AS THE ASSESSEE HA S NOT OFFERED THE INTEREST RECEIPT IN THE RETURN OF INCOME. THE AO INITIATED T HE PENALTY FOR FURNISHING THE INACCURATE PARTICULARS OF INCOME. THE AO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) DATED 31.03.2005, WHICH FOLLOW ED SIMILAR NOTICE DATED 30.08.2015. THE ASSESSEE FILED HER REPLY DATED 16.0 4.2015 ON 15.05.2015. IN THE REPLY, ASSESSEE CONTENDED THAT ASSESSEE FURNISH ED FULL DISCLOSER WHILE FILING THE RETURN OF INCOME. THE ASSESSEE HAS NOT F URNISHED ANY INACCURATE PARTICULAR NOR CONCEALED ANY INCOME. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO. THE AO LEVIED THE PENALTY @ 100 % OF THE TAX SOUGHT TO BE EVADED. THUS, THE AO LEVIED THE PENALTY OF RS. 1 ,77,405/-. ON APPEAL BEFORE THE LD. CIT(A), THE ORDER OF PENALTY WAS CON FIRMED. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE PRESENT A PPEAL IS FILED BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) FOR THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE ARGUED THAT THE ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULA RS OF INCOME NOR CONCEALED THE INCOME WHILE FILING RETURN OF INCOME. THE INTEREST RECEIPT ITA NO.1169/M/20 17- SMT. SMITA NARENDRA PANANI 3 WAS INADVERTENTLY LEFT INCLUDING THE INCOME OF RECE IPT WHILE FILING RETURN OF INCOME. THE ASSESSEE OFFERED THE SAME WHEN IT WAS B ROUGHT IN THE NOTICE OF ASSESSEE. THERE WAS BONAFIDE HUMAN ERROR WHILE FILI NG RETURN OF INCOME. THE REVENUE HAS ALREADY TAXED THE SAID INTEREST RECEIPT . ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHO RITIES BELOW. IT WAS ARGUED THAT THE INCOME WAS NOT SELECTED FOR SCRUTIN Y. THE INTEREST INCOME WOULD HAVE ESCAPED THE ASSESSMENT. THUS, THE ASSESS EE FURNISHED INACCURATE PARTICULAR OF INCOME AND CONCEALED THE SAID INCOME. IN SUPPORT OF HIS SUBMISSION, THE LD. DR FOR THE REVENUE RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CIT VS. ZOOM COMMUNICATION IN I TA NO. 07/2010 DATED 24.05.2010. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE SE EN THAT WHILE FRAMING THE ASSESSMENT ORDER, THE AO CONCLUDED THAT ASSESSEE FU RNISHED INACCURATE PARTICULARS OF INCOME. IN REPLY TO THE NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT, THE ASSESSEE CONTENDED THAT A SSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULAR OR CONCEALED ANY INCOME. FULL DISCLOSURE WAS MADE IN THE RETURN OF INCOME. DURING THE FIRST APPELLATE STAGE, THE ASSESSEE FURTHER EXPLAINED THAT ASSESSEE CAME TO KNOW ABOUT THE INCOME TAX REFUND (WHICH CONSISTS OF INTEREST RECEIPT) AFTER ASSESSEE RECEIVED AIR INFORMATION FROM AO. THE ASSESSEE CONTENDED THAT AFTER RECEIPT OF INFORMATION OF REFUND REVISE COMPUTATION OF INCOME WAS FURNISHED TO THE A O. IT WAS FURTHER ITA NO.1169/M/20 17- SMT. SMITA NARENDRA PANANI 4 CONTENDED THAT THE ASSESSEE HAS OFFERED HUGE AMOUNT OF INCOME OF RS.3,40,21,132/- TO TAX. THEREFORE, THERE IS NO QUE STION OF HIDING INTEREST INCOME OF INTEREST TAX REFUND INTENTIONALLY. IN OUR VIEW, THE ASSESSEE HAS SUFFICIENTLY EXPLAINED THE FACT. FURTHER, THERE IS NO DISPUTE THAT THE INTEREST INCOME WAS ADDED IN THE INCOME OF ASSESSEE AND WAS TAXED. IN OUR CONSIDERED VIEW, THE ASSESSEE HAS SUFFICIENTLY EXPL AINED AND OFFERED THE INTEREST INCOME AND THUS, THERE WAS NO CONCEALMENT OF INCOME OR OCCASION FOR ASSESSEE FOR FURNISHING INACCURATE PARTICULAR. KEEPING IN VIEW THE TOTALITY OF THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS SUFFICIENTLY EXPLAINED THE FACTS ABOUT NOT OFFERING THE INTEREST RECEIPT WHILE FILING THE RETURN OF INCOME. THE RATION OF CASE LAW IN ZOOM COMMUNICATION (SUPRA ) RELIED BY LD DR IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. TH E FACTUAL MATRIX OF THE PRESENT CASE IS DIFFERENT. IN ZOOM COMMUNICATION ( SUPRA) THE ASSESSEE HAS NOT EXPLAINED EITHER BEFORE LOWER AUTHORITY OR BEFO RE TRIBUNAL IN WHICH CIRCUMSTANCES AND ON WHOSE MISTAKE, THE DEDUCTION C LAIMED WERE NOT ADDED, WHILE COMPUTING THE INCOME. HOWEVER, IN THE PRESENT CASE THE ASSESSEE HAS OFFERED THE INTEREST INCOME IMMEDIATELY, WHEN IT WA S REPORTED TO THE ASSESSEE BY FILING REVISE RETURN. MOREOVER, THE INT EREST INCOME WAS PART OF REFUND BY INCOME TAX DEPARTMENT. THE EXPLANATION S UBMITTED BY ASSESSEE IS OTHERWISE PLAUSIBLE ONE. 5. IN OUR VIEW, IT WAS A BONAFIDE MISTAKE. KEEPING IN VIEW, THE ASSESSEE HAS OFFERED THE SUBSTANTIAL AMOUNT OF INCOME FOR TAX AN D THE ASSESSEE WOULD NOT ITA NO.1169/M/20 17- SMT. SMITA NARENDRA PANANI 5 HAVE CONCEALED THE INCOME OF RS. 5,74,128/- INTENTI ONALLY. AS WE ALREADY OBSERVED THAT THE REPLY AND EXPLANATION OF THE ASSE SSEE WAS BONAFIDE. IN SUCH CIRCUMSTANCES, NO PENALTY ORDER WAS WARRANTED WHICH WE DELETE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF SEPTEMBE R 2017. SD/- SD/- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 29/09/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/