VASAI VIKAS SAHAKARI BANK LTD, MUMBAI V. ACIT CIR 4, THANE

ITA 1231/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9724 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 09-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 1231/MUM/2016 ( / ASSESSMENT YEAR: 2009 - 10 ) VASAI VIKAS SAH AKARI BANK LTD. SAMAJ MANDIR, OPP. NEW ENGLISH HIGH SCHOOL, PARNAKA, VASAI (W) - 401 201 / VS. ACIT, CIRCLE - 4, THANE ./ ./ PAN/GIR NO. AAAAV 0519 Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI BHUPENDRA SHAH / RESPONDENT BY : SHRI RAM TIWARI / DATE OF HEARING : 21.03.2018 / DATE OF PRONOUNCEMENT : 22.03 .2018 / O R D E R PER S HAMIM YAHYA, A. M.: THIS A PPEAL BY T HE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 01.12.2015 AND PERTAINS TO THE A SSESSMENT YEAR 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARN ED A.O. ERRED IN LEVYING PENALTY OF RS.22,42,719/ - IN RESPECT OF THE CLAIM OF DEDUCTION U/S. 36(1)(VIIA). 2 ITA NO. 1231/MUM/2016 VASAI VIKAS SAHAKARI BANK LTD. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE SAME BY DISREG ARDING SEVERAL JUDGMENTS AND ALSO OVERLOOKING THE FACT THAT SIMILAR PENALTY WAS DELETED IN A.Y. 2010 - 11. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE BRIEF FACTS LEADING TO THE LEVY OF PENALTY WAS THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 36(1)(VIIA) THROUGH COMPUTATION OF INCOME, WITHOUT CORRESPONDING DEBIT BEING MADE TO P & L ACCOUNT. UPON THIS DISALLOWANCE, PENALTY U/S. 271(1)(C) WAS ALSO LEVIED AND CONFIRMED. 4. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THE IDENTICAL SITU ATION, SIMILAR PENALTY LEVIED IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11, THIS TRIBUNAL IN ITA NO. 2869/MUM/2015 VIDE ORDER DATED 22.3.2017 HAS DELETED THE PENALTY BY OBSERVING AS UNDER: 4. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES . WE FIND THAT THE ASSESSEE HAS MERELY FAILED TO PROVIDE THE PROVISION IN BAD DEBT AND DOUBTFUL DEBT THOUGH THE PROVISION IS MADE AS PER RBI GUIDELINES IN THE EARLIER WAS EXCESS. THE ASSESSEE HAS DIRECTLY CLAIMED THE DEDUCTION IN COMPUTATION OF INCOME INST EAD OF PROVIDING SAME IN THE BOOKS FOR DEBTING IN THE P & L ACCOUNT AS PER THE PROVISIONS OF THE ACT. THEREFORE, THE ASSESSEE HAD NEITHER CONCEALED NOR FILED ANY INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAS DULY DISCLOSED THE FACTS OF INCOME IN ITS R ETURN OF INCOME FILED BEFORE THE DEPARTMENT. THEREFORE, WE ARE OF THE VIEW THAT THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 322 ITR 158 (SC) PETROPRODUCT (SUPRA ) WHEREIN IT IS HELD THAT A MERE MAKING CLAIM WHICH IS NOT SUSTAINABLE IN LAW WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN RETURN CANNOT AMOUNT TO INACCURATE PARTICULAR AND NO PENALTY U/S. 27 1(1) (C) CAN BE IMPOSED. 3 ITA NO. 1231/MUM/2016 VASAI VIKAS SAHAKARI BANK LTD. 5 . UPON CAREFUL LY CONSIDERING THE FACTS WE FIND THAT SINCE IN THE IDENTICAL SITUATION THE ITAT HAS CONFIRMED THE DELETION OF THE PENALTY , ON SAME FACTS PENALTY CANNOT BE LEVIED. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE CO - O RDINATE BENCH IN T H E ASSESSEES OWN CASE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE LEVY OF PENALTY. 6 . IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.03.2018 SD/ - SD/ - ( PAWAN SINGH ) (S HAMIM YAHYA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 23.03.2018 . . ./ ROSHA NI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRA R) , / ITAT, MUMBAI