MOHD ASGAR SHAIKH, MUMBAI V. ITO 24(2)(4), MUMBAI

ITA 1246/MUM/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9804 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 13-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Difference of opinion
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE S HRI B.R. BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1246 /MUM/20 1 3 ASSESSMENT YEAR: 2005 - 2006 MOHD. ASGAR SHAIKH, 23/58, NEW COLLECTOR - COMPOUND MALWANI COLONY, GATE NO. 7, MAL AD (WEST) MUMBAI - 400095 PAN: ARCPS4059C VS. THE I.T.O. WARD 24(2)(4), C - 11, 5 TH FLOOR, PRATYASASHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI - 400051 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL THAKKAR (AR) RESPONDENT BY : SHRI M.C. OMI NINGSHEN (DR) DATE OF HEARING: 28 /04 /201 7 DATE OF PRONOUNCEMENT: 26 / 0 7 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 2 6/11/2012 PASSED BY LD. CIT (APPEALS ) - 34 , MUMBAI PERTAINING TO THE A S S ESSMENT YEAR 2005 - 2006 , WHEREBY THE LD. CIT(A) HAS CONFIRMED THE PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961(FOR SHORT THE ACT.) 2. BRIEF FACTS OF T HE CASE ARE THAT AGAINST THE INCOME OF RS. 1,56,276/ - DECLARED BY THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR , THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 22,39,176/ - AFTER MAKING ADDITION OF RS. 2 I TA NO. 1246/MUM/2013 ASSESSMENT YEAR: 2005 - 2006 2,46,000/ - , RS. 11,17,500/ - AND RS. 7,19,400 / - AS ASSESSEES OWN INCOME EARNED FROM UNDISCLOSED SOURCES AND RS. 3,908/ - RECEIVED INTEREST U/S 244A OF THE ACT AND NOT OFFERED TO TAX. ACCORDINGLY, AO INITIATED PROCEEDINGS U/S 271C AND LEVIED PENALTY OF RS. 4,24,433/ - . IN THE FIRST APPEAL, THE LD. CIT( A) CONFIRMED THE PENALTY ORDER PASSED BY THE AO. 3 . AGGRIEVED BY THE IMPUGNED ORDER PASSED BY THE LD. CIT (APPEALS) , THE ASSESSE E HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: - 1. THE APPELLANT IS AN INDIVIDUAL HAVING BUSINESS O F JOB WORK OF READYMADE GARMENTS. 2. THE APPELLANT FILED ITS RETURN OF INCOME ON 22 - 03 - 2006 DECLARING THEREIN TOTAL INCOME OF RS. 1,56,276/ - . 3. THE LD. OFFICER IS ERRED IN LEVYING PENALTY U/S. 271 (1) (C) OF THE ACT, AMOUNTING TO RS. 4,24,433/ - . ON THE BASIS OF DISALLOWANCE MADE, BEING DIFFERENCE OF OPINION RELATING TO ALLOWANCE OR DISALLOWANCE OF CERTAIN EXPENDITURE DOES NOT BY ITSELF BECOME THE BASE FOR LEVYING PENALTY. 4. YOUR HONOR IS THEREFORE, REQUESTED TO DELETE THE PENALTY LEVIED BY THE OFFICER. 5. THE AP PELLANT CRAVES TO ADD, AMEND, DELETE OR ALTER ANY OF THE ABOVE GROUNDS WITH PRIOR PERMISSION OF YOUR HONOR. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT (A) HAS WRONGLY CONFIRMED THE PENALTY LEVIED BY AO U/S 271C OF THE AC T ON THE BASIS OF DISALLOWANCES MADE BEING DIFFERENCE OF OPINION . THE LD. COUNSEL FURTHER SUBMITTED THAT IN QUANTUM APPEAL, THE ITAT HAS SET ASIDE THE ISSUE RELATING TO ADDITION OF RS. 2,46,000/ - AND RESTORE THE ISSUE TO THE 3 I TA NO. 1246/MUM/2013 ASSESSMENT YEAR: 2005 - 2006 FILE OF AO FOR FRESH ADJUDICATI ON . HOWEVER, THE ITAT CONFIRMED THE ADDITION OF RS. 7,19,400/ - ON THE GROUND THAT THE ASSESSEE HAS FAILED TO GIVE BASIC I NFORMATION CALLED FOR BY THE AO. THE LD. COUNSEL FURTHER CONTENDED THAT ASSESSMENT PROCEEDINGS AND THE PENALTY PROCEEDINGS ARE DISTINCT AND DIFFERENT PROCEEDINGS AND CONFIRMATION OF DISALLOWANCE ITSELF IS NOT SUFFICIENT TO LEVY PENALTY U/S 271(1)(C) OF THE ACT. PLACING RELIANCE ON THE JUDGMENT OF HON LE SUPREME COURT DELIVERED IN RELIANCE PETROPRODUCT PVT. LTD 322 ITR 158(SC) , THE LD. COU NSEL SUBMITTED THAT THE PARTICULARS MEANS DETAILS OF THE CLAIM MADE AND IF THE DETAILS FURNISHED ARE FOUND TO BE NOT CONCEALED OR FURNISHED INACCURATELY, PENALTY CANNOT BE LEVIED. B EING THE DIFFERENCE OF OPINION RELATING TO ALLOWANCE OR DISALLOWANCE O F CER TAIN EXPENDITURE, THE LD. CIT (A) HAS WRONGLY CONFIRMED THE PENALTY LEVIED BY THE AO. 5. ON THE OTHER HAND, THE LD. DR RELYING ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW SUBMITTED THAT SINCE THE ASSESSEE HAS FAILED TO PROVIDE THE BASIC INFORMATI ON BEFORE THE AUTHORITIES BELOW , THE TRIBUNAL HAS CONFIRMED TH E ADDITION OF RS. 7,19,400/ - CLAIMED BY THE ASSESSEE TOWARDS COLLECTION ON ACCOUNT OF CONSTRUCTION OF A PLACE OF WORSHIP. THEREFORE, THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED BY T HE AO UNDER SECTION 271(1)(C) OF THE ACT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THR OUGH THE MATERIAL PLACED BEFORE US. WE NOTICE THAT IN QUANTUM APPEAL THE ASSESSEE CHALLENGED THE ACTION OF THE LD. CIT(A) OF CONFIRMING TWO ADDITIONS I.E. ADDITION OF RS. 2,46,000/ - AND THE ADDITION OF RS. 7,19,400/ - BEFORE THE ITAT. THE ITAT SET ASIDE THE FIRST ADDITION AND RESTORE D THE SAID ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION. SO FAR AS THE SECOND ADDITION IS CONCERNED THE CONTENTION OF THE ASSE SSEE BEFORE THE TRIBUNAL WAS THAT THE 4 I TA NO. 1246/MUM/2013 ASSESSMENT YEAR: 2005 - 2006 AMOUNT OF RS. 7,19,400/ - HAD BEEN RECEIVED TOWARDS COLLECTION FOR CONST RUCTIONS OF A PLACE OF WORSHIP AND IN SUPPORT OF THE CLAIM THE ASSESSEE HAS FILED THE AFFIDAVIT S SWORN BY FOUR PERSONS . THE COORDINATE BENCH, HOWE VER , CONFIRMED THE ADDITION HOLDING THAT THE ASSESSEE HAS FAILED TO ADDUCE ANY EVIDENCE SUCH AS BILL FOR MATERIAL USED FOR THE CONSTRUCTION PERMISSIONS FROM LOCAL AUTHORITIES COPIES OF PLAN ETC. THE ASSESSEE HAS ALSO FAILED TO SUBMIT INFORMATION ABOUT THE CONSTITUTION OF COMMITTEE FOR THE PURPOSE OF CONSTRUCTION. THEREFORE, THE AO WAS WELL WITHIN HIS AUTHORITY TO ASK FOR THE FURTHER DETAILS AND THE BURDEN WAS UPON THE ASSESSEE TO FURNISH THE BASIC INFORMATION CALLED FOR BY THE A O. 7. A S PER THE SETTLED LAW , PENALTY PROCEEDINGS ARE DIFFERENT FROM THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE IS ENTITLED TO ADDUCE ANY EVIDENCE WHICH IT HAD NOT ADDUCED DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, IN THE PRESENT CASE THE ASSESSEE HAS NOT PRODUCE ANY EVIDENCE EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL T O REBUT THE EVIDENCE ON RECORD WHICH ESTABLISH T H AT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE INCOME . MOREOVER , IT IS NOT THE CASE OF THE DIFFERENCE OF T HE OPINION REGARDING ADMISSIBILITY OR NON ADMISSIBILITY OF ANY CLAIM . IN FACT THE ASSESSEE HAS FAILED TO ESTABLISH THE FACT THAT THE AMOUNT IN QUESTION HAD BEEN RECEIVED AS DONATION BY THE ASSESSEE IN CONNECTION WITH CONSTRUCTION OF A MOSQUE , WHICH GIVES R ISE TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME BY FURNISHING INACCURATE PARTICULARS THEREOF . THEREFORE, WE HOLD THAT THE ASSESSEE HAS CONCEALED HIS TAXABLE INCOME BY FURNISH ING INACCURATE PARTICULAR OF HIS INCOME WITHI N THE MEANING OF SECTION 271 (1)(C) OF THE ACT. SO W E DO NOT FIND ANY INFIRMITY, LEGAL OR FACTUAL, IN THE IMPUGNED ORDER TO INTERFERE WITH THE SAME. HENCE, WE UPHOLD THE FINDI NGS 5 I TA NO. 1246/MUM/2013 ASSESSMENT YEAR: 2005 - 2006 OF LD. CIT (A) AND CONFIRM THE PENALTY IN RESPECT OF THE ADDITION OF RS. 7,19 ,400/ - . IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 200 5 - 2006 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 26 TH JULY , 2017 . SD/ - SD/ - ( B.R. BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 0 7 / 2017 ALINDRA PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI