ITO 12(3)(2), MUMBAI V. RUSTIC HIGHLANDS ENTERPRISES, MUMBAI

ITA 1257/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92392 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: PRAKASH K JOTWANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T. A. NO. 1257 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) INCOME TAX OFFICER, 12 ( 3 )( 2 ), ROOM NO.1 14, A A YAKAR BHAVAN, M K ROAD, MUMBAI - 4000 20 / VS. M/S RUSTIC HIGHLANDS ENTERPRISES 311 - 312, DALAMAL TOWER, 221, NARIMAN POINT, MUMBAI - 400 021 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAAFR2389B / APPELLANT BY SHRI LOVE KUMAR / R ESPONDENT BY SHRI PRAKASH K JOTWANI / DATE OF HEARING : 19 .3 . 201 5 / DATE OF PRONOUNCEMENT : 17. 4 . 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 2 6.11.2012 PASSED BY LD CIT (A) - 10 , MUMBAI , WHEREIN THE LD CIT(A) HAS DELET ED THE PENALTY LEVIED BY THE AO U/S 271 (1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT). 2 . WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPMENT AND SALE OF LAND B Y DEMARKING THE SAME INTO SMALL ER PLOTS . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAD PAID A SUM OF RS.2,68,018/ - TO AN ARCHITECT AND A SUM OF RS.7,50,000/ - TO AN ELECTRICAL CONTRACTOR , WITHOUT DEDUCTING TAX AT SOUR CE U/S 194J/194C OF THE ACT . H ENCE THE AO DISALLOWED THE ABOVE SAID AMOUNT S BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE AO ALSO LEVIED A I.T.A. NO. 1257 / MUM/201 3 2 PENALTY ON THE ABOVE SAID DISALLOWANCE U/S 271(1)(C) OF THE ACT. THE ASSESSEE CHALLENGED THE PENAL TY ORDER BY FILING THE APPEAL BEFORE THE LD.CIT(A) , WHO DELETED THE SAME BY HOLDING THAT THE DISALLOWANCE MADE U/S 40(A)(IA) CANNOT BE TREATED A CASE OF CONCEALMENT OF PARTICULAR OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. AGGRIEVED, BY THE DECISION OF THE LD.CIT(A), THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. WE NOTICE THAT THE ASSESSEE HAS PLACED RELIANCE BEFORE THE LD. CIT(A) ON THE DECISIONS R ENDERED BY A CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT V/S BHORUKA LOGISTICS (P) LTD AND ALSO UPON THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS (322 ITR 158). 4. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE VEHEMENTLY CONTENDED THAT THE ASSESSEE HAS NEITHER CONCEALED ANY PARTICULARS OF IN COME NOR FURNISHED INACCURATE PARTICULARS OF INCOME AND FURTHER DISALLOWANCE MADE U/S 40(A)(IA) WOULD NOT ATTRACT THE PENALTY U/S 271(1)(C) OF THE ACT. IN SUPPORT OF HIS CONTENTION, TH E LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS RENDERED BY THE C O - ORDINATE BENCHES OF THE TRIBUNAL : S.NO. ITA NO. NAME OF THE ASSESSEE BENCH/DATE OF ORDER 1 6306/MUM/2011 SATYAJEET MOVIES PVT.LTD. - 21.02.2014 2 6684/MUM/2012 RUSHI BUILDERS AND DEVELOPERS D - 4.3.2015 3 2153/AHD/2010 M/S ELECTRO POWER ENGINEE RS D - 5.7.2013 4 44/IND/2013 ROOP SINGH BAGGA, INDORE INDORE - 31.5.2012 5 4549/MUM/2013 M/S SHINHAN BANK, E - 23.9.2014 5. THOUGH THE LD. DR STRONGLY SUPPORTED THE PENALTY ORDER OF THE AO , YET WE NOTICE THAT VARIOUS BENCHES OF THE TRIBUNAL ARE CONSIST ENTLY TAKING THE VIEW THAT THE DISALLOWANCE MAD E U/S 40(A)(IA) OF THE ACT WOULD NOT RESULT IN CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME WITHIN THE MEANING OF THE PROVISIONS OF SEC. 271(1)(C) . S INCE THE LD. CIT( A) HAS TAKEN THE VIEW IN ACCORDANCE WITH THE VIEWS TAKEN BY CO - ORDINATE I.T.A. NO. 1257 / MUM/201 3 3 BENCHES OF THE TRIBUNAL ON THIS ISSUE , WE DO NOT FIND ANY REASON TO INTERFERE WITH H IS ORDER. 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. THE AB OVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17TH APR , 2015 . 17TH APR , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 17TH APR IL , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CO NCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI