SURINCO WORKWEAR P. LTD, MUMBAI V. ITO 8(3)(2), MUMBAI

ITA 1290/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7482 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: HEENA SHETH
• Keywords: Invalid notice; Business income; Bonafide belief; Wrong claim; Reassessment proceedings
• Section: 271(1)(c); 143(3); 133(6); 147; 131; 148

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.1290/ MUM/2017 ( / ASSESSMENT YEAR : 2009 - 10 M/S. SURINCO WORKWEAR PRIVATE LTD., 36, MAROL INDUSTRIAL ESTATE, M. VASANJI ROAD, ANDHERI (E), MUMBAI - 400 059 / V. ITO 8(3)(2) R.NO. 412, AAYAKAR BHAVAN, MUMBAI 400021 ./ PAN : AA ACS5694K ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: MS. HEENA SHETH REVENUE BY: SHRI. O.P MEENA (DR) / DATE OF HEARING : 04.02.2019 / DATE OF PRONOUNCEMENT : 01 .05 .2019 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS APPEAL, FILED BY ASSESSEE, BEING ITA NO. 1290/ MUM/2017 , IS DIRECTED AGAINST APPELLATE ORDER DATED 01.11.2016 IN APPEAL NO. CIT(A) - 18/IT - 126/ITO - 8(3)(2)/14 - 15, PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 18 , MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR ASSESSMENT YEAR 2009 - 10 , THE APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM THE PENALTY ORDER DATED 28. 03.2014 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) FOR AY 2009 - 1 0 . I.T.A. NO.1290/MUM/2017 2 | P A G E 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER: - PRELIMINARY GROUNDS OF APPEAL 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, PENALTY PROCEEDINGS INITIATED IN ASSESSMENT ORDER BY THE LEARNED I.T.O, 8(3) - 2, MUMBAI (HER EINAFTER REFERRED TO AS 'THE LEARNED AO') BY ISSUE OF INVALID NOTICE UNDER SEC TION 274 READ WITH SECTION 271(1 )(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') IN THE PRINTED FORM WITHOUT SPECIFICALLY MENTIONING WHETHER THE PROCEEDING S ARE INITIATED ON THE GROUND OF CONCEALMENT OF INCOME OR ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE PENALTY PROCEEDINGS INITIATED BY THE LEARNED AO WITHOUT SERVING A VALID NOTICE WERE ILLEGAL AND INVALID. THE FOLLOWING ALTERNATIVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO PRELIMINARY GROUNDS OF APPEAL: 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 18, MUMBAI (HEREINAFTER REFERRED TO AS 'THE LEARNED CIT(A)'), ERRED IN PASSING THE ORDER UNDER APPEAL DATED 1ST NOVEMBER, 2016 WHICH WAS DISPATCHED FOR SERVING UPON APPELLANT ON 23RD DECEMBER, 2016 WITH THE INTENT TO DEFEAT APPELLANT'S DECLARATION FILED ON 7IH NOVEMBER, 2016 UND ER SECTION 204 OF THE FINANCE ACT, 2016 UNDER DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016 . HE OUGHT NOT TO HAVE DONE SO. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 1,75,000/ - ON THE GROUNDS OF ADDITION OF RS. 2,31,775/ - UNDER SECTION 41(1) OF THE ACT AND UPON MERELY CHANGE OF HEAD OF INCOME IN RESPECT OF RS. 10,98,000/ - . HE OUGHT NOT TO HAVE DONE SO. YOUR APPELLANTS CRAVE LEAVE TO ADD, ALTER OR MODIFY ANY OR ALL OF THE FOREGOING GROUND OF APPEAL, IF REQUIRED. 3. THE BRIEF FAC TS OF THE CASE ARE THAT THE ASSESSEE S MAJOR SOURCE OF INCOME DECLARED IN RETURN OF INCOME FILED WITH REVENUE IS INCOME FROM HOUSE P ROPERTY OF RS. 10,98,000/ - AND OTHER INCOME OF THE I.T.A. NO.1290/MUM/2017 3 | P A G E ASSESSEE WERE FROM OTHER SOURCES OF RS. 39,637/ - FROM ELECTRICITY AND WATER CHARGES RECEIPTS. 4. THE ASSESSEE HAD SHOWN SUM OF RS. 2,31,775/ - UNDER THE HEAD SUNDRY CREDITORS PAYABLE TO M/S. ALOK TEXTILE TRADERS IN ITS BALANCE S HEET AS AT 31.03.2009 . THE ASSESSEE WAS ASKED BY THE AO TO FILE CONFIRMATION FROM THE AFORESAID P ARTY. THE ASSESSEE WAS NOT ABLE TO FILE CONFIRMATION FROM THE SAID PARTY WHICH LED THE AO TO HOLD THAT THE ASSESSEE COULD NOT PROVE GENUINENESS OF THE SAID CREDITOR WHICH LED AO TO MAKE ADDITION S TO THE INCOME OF THE ASSESSEE IN QUANTUM ASSESSMENT TO THE TUNE OF RS. 2,31,775/ - U/S 41(1) OF THE 1961 ACT , VIDE AS SESSMENT ORDER DATED 30.11.2011 PASSED BY THE AO U/S. 143(3) OF THE 1961 ACT . THIS LED TO INVOCATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE 1961 ACT BY THE AO AGAINST THE ASSESSEE FOR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME. THE APPEAL FILED AGAINST QUANTUM ADDITIONS BY THE ASSESSEE BEFORE LEARNED CIT(A) ALSO STOOD DISMISSED BY LEARNED CIT(A) VIDE APPELLATE ORDER DATED 30.10.2012 AND THE ADDITIONS TO INCOME IN QUANTUM STOOD CONFIRMED BY L EARNED CIT(A). L ATER THIS ADDITION S TO THE INCOME U/S 41(1) OF THE 1961 ACT LED TO THE LEVYING OF THE PENALTY BY THE AO U/S 271(1)(C) OF THE 1961 ACT VIDE PENALTY ORDER DATED 28.03.2014 PASSED BY THE AO U/S 271(1)(C) OF THE 1961 ACT, WITH RESPECT TO ADDITI ON S OF RS. 2,31,775/ - TO THE INCOME OF THE ASSESSEE U/S 41(1) OF THE 1961 ACT . THE ASSESSEE IN PENALTY PROCEEDING S U/S 271(1)(C) ALSO COULD NOT FILE CON FIRMATION FROM THE SAID PARTY AND AS PER VERSION OF THE ASSESSEE THE SAID CONCERN M/S ALOK TEXTILE TRADE RS STOOD MERGED WITH M/S. ALOK TEXTILE S LTD. WHICH WAS STATED TO BE THE MAIN REASON FOR NOT GETTING CONFIRMATION FROM THE SAID PARTY. THE EXPLANATION FILED BY THE ASSESSEE IN PENALTY PROCEEDINGS U/S 271(1)(C) ALSO STOOD REJECTED BY THE AO LEADING TO LEVY OF PENALTY U/S 271(1)(C) OF THE 1961 ACT VIDE PENALTY ORDER DATED 28.03.2014 WITH RESPECT TO ADDITIONS AS WERE MADE BY THE AO U/S 41(1) OF THE 1961 ACT . I.T.A. NO.1290/MUM/2017 4 | P A G E 4.2 ON THE SECOND ISSUE , THE AO OBSERVED DURING ASSESSMENT PROCEEDINGS U/S 143(3) OF THE 1961 ACT FR OM RENT AGREEMENT FILED BY THE ASSESSEE THAT THE ASSESSEE HAS GIVEN THE PREMISES OF 750 SQUARE FEET AT 2 ND FLOOR AND OPEN SPACE OF 4800 SQUARE FEET O N GROUND ADJOINING TO THE BUILDING SITUATED AT 36, MAROL CO - OPERATIVE INDUSTRIAL ESTATE , MR VASANJI ROAD, ANDHERI EAST, MUMBAI - 400059 , WHILE THE SAID ASSET IS NOT APPEARING ON THE BALANCE SHEET OF THE ASSESSEE COMPANY. THE ASSESSEE SUBMITTED THAT THE SAID PROPE RTY IS TAKEN ON LEAVE AND LICE N SE BASIS FROM SHRI VIRESH B. GHATLIA , WHO IS DIRECTOR OF THE ASSESSEE. THUS, THE AO OBSERVED THAT THE INCOME DERIVED FROM TRANSACTION IS ONLY INCOME FROM SUBLETTING OF THE AFORESAID PREMISES, WHICH WAS BROUGHT TO TAX B Y THE AO AS INCOME UNDER THE HEAD I NCOME FROM OTHER SOURCES . THE AO OBSERVED THAT THE ASSESSEE HAS DECLARED AFORESAID COMPENSATION/RENT RECEIVED OF RS. 10,98,000/ - UNDER THE HEAD INCOME FROM HOUSE PROPERTY ON WHICH DEDUCTION U/S. 24(1) WAS ALSO CLAIME D BY THE ASSESSEE. T HE AO BROUGHT THE SAID INCOME TO TAX AS INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES AND DEDUCTION U/S 24(1) WAS ALSO DENIED TO THE ASSESSEE , VIDE ASSESSMENT ORDER DATED 30.11.2011 PASSED BY THE AO U/S 143(3) OF THE 1961 ACT . THIS LED TO THE INVOCATION OF PENALTY PROCEEDING U/S. 271(1)(C) OF THE 1961 ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME . IN TH E MEAN TIME QUANTUM ADDITION WERE CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(A) WHICH APPEAL OF THE ASSESSEE STOOD DISMISSED BY LD. CIT(A) VIDE APPELLATE ORDER DATED 30.10.2012 WHEREIN LEARNED CIT(A) HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 24(1) OF THE 1961 ACT AS THE ASSESSEE IS NOT THE OWNER OF THE PROPERTY . THIS ALSO LED TO THE LEVY OF PENALTY U/S. 271(1)(C) FOR FURNISHING OF I NACCURATE PARTICULARS OF INCOME AND EXPLANATION FURNISHED BY THE ASSESSEE STOOD REJECTED BY THE AO , VIDE PENALTY ORDER DATED 28.03.2014 PASSED BY THE AO U/S 271(1)(C) OF THE 1961 ACT. I.T.A. NO.1290/MUM/2017 5 | P A G E 5 . AGGRIEVED BY THE PENALT Y ORDER DATED 28.03.2014 PASSED BY THE AO U/S 271(1)(C) OF THE 1961 ACT, THE ASSESS EE FILED FIRST APPEAL BEFORE LEARNED CIT(A) WHICH STOOD DISMISSED BY LEARNED CIT(A) ON BOTH THE GROUNDS VIDE APPELLATE ORDER DATED 01.11.2016 , BY HOLDING AS UNDER: - ONL Y GROUND IS LEVY OF PENA LTY OF RS. 1,75,000/ - U/S. 271(1 )(C). I HAVE PERUSED THE PENALTY ORDER AS WELL AS THE ASSESSMENT ORDER AND CONSIDERED THE CONTENTIONS OF THE APPELLANT AND FIND THAT THE ASSESSING OFFICER HAS LEVIED PENALTY ON ADDITION OF RS. 2,31,77 5/ - U/S. 41(1) IN RESPECT OF ONE SUNDRY CREDITOR M/S. ALOK TEXTILES TRADER. THE APPLICANT HAS FAILED TO PRODUCE CONFIRMATION OF THE SAID PARTY DURING ASSESSMENT AND PENALTY PROCEEDINGS AND TILL TODAY NO CONFIRMATION IS PRODUCED. I, THEREFORE, FIND THAT THE RE IS A CESSATION OF LIABILITY WHICH WAS WRONGLY REFLECTED AS SUNDRY CREDIT IN THE BALANCE SHEET THEREBY FILING INACCURATE PARTICULARS OF INCOME. MOREOVER THE APPELLANT HAS ACCEPTED THE SAID ADDITION WITHOUT RECOURSE TO FURTHER REMEDIES. SIMILARLY THE APPE LLANT HAS SHOWN DEDUCTION U/S. 24(1) IN RESPECT OF COMPENSATION OF RS. 10,98,000/ - WRONGLY SHOWN AS RENT. EVEN THOUGH THE APPELLANT WAS NOT THE OWNER OF THE PROPERTY THEREFORE, THE SAME WAS DIRECTLY TREATED AS INCOME FROM OTHER SOURCES ARISING OUT OF SUB - L ETTING. I, THEREFORE, FIND THAT THE APPELLANT HAS MADE THE WRONG CLAIM OF DEDUCTION TO U/S. 24 MISREPRESENTING LEAVE & LICENSE FEE AS RENT. EVEN BEFORE ME SIMILAR CONTENTIONS WERE REITERATED. IN VIEW OF THE ABOVE, I FIND THAT THE LEVY OF PENALTY ON BOTH TH E COUNTS IS JUSTIFIABLE ON FACTS BECAUSE THE CASE LAWS CITED BY THE APPELLANT ARE DISTINGUISHABLE O N FACTS. I ALSO FIND THAT THIS IS NOT CASE OF BONAFIDE BELIEF OR REJECTION OF DEBATABLE CLAIM. THIS IS A CLEAR CASE OF NON - EXISTING LIABILITY AND WRONGLY CLA IM OF DEDUCTION. ACCORDINGLY, I UPHOLD THE PENALTY OF RS. 1,75,000/ - AND DISMISS THE APPEAL OF THE APPELLANT. 6 . NOW THE MATTER IS BEFORE THE TRIBUNAL A T THE BEHEST OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THESE ARE APPEALS AGAINST PENALTY LEVIED BY THE AO U/S. 271(1)(C) O F THE ACT I.T.A. NO.1290/MUM/2017 6 | P A G E WHICH PENALTY WAS LATER CONFIRMED BY LEARNED CIT(A). IT WAS SUBMITTED THAT PENALTY PROCEEDINGS WERE INVOKED BY THE AO U/S 271(1)(C) ON GROUND THAT THE ASSESSEE HAS FURNISHED INACCUR ATE PA RTICULARS OF INCOME ON BOTH THE ISSUES WHICH IS FOUND MENTION ED IN THE ASSESSMENT ORDER DATED 30.11.2011 PASSED BY THE AO U/S. 143(3) OF THE 1961 ACT AT PARA 5 . I T WAS SUBMI TTED THAT PENALTY PROCEEDING WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS O F INCOME AND PENALTY WAS LATER LEVIED ON BOTH THE ISSUES ALSO ON THE FURNISHING OF INACCURATE PARTICULAR S OF INCOME . OUR ATTENTION WAS DRAWN TO PAGE 5/PAPER BOOK FILED BY THE ASSESSEE WITH TRIBUNAL, WHEREIN NOTICE DATED 30.11.2011 ISSUED BY THE AO U/S 271( 1)(C) READ WITH SECTION 274 OF THE 1961 ACT IS PLACED. IT WAS SUBMITTED THAT THE RELEVANT COLUMN /LIMB UNDER WHICH PENALTY PROCEEDINGS WERE INVOKED IS NOT STRUCK OFF IN THE SAID PENALTY NOTICE DATED 30.11.2011 ISSUED BY THE AO U/S 271(1)(C) OF THE 1961 ACT . O N MERIT , IT WAS SUBMITTED THAT THERE WERE ADDITION S MADE TO INCOME OF THE ASSESSEE ON ACCOUNT OF CESSATION OF LIAB I L ITY U/S. 41(1) OF THE 1961 ACT TO THE TUNE OF RS. 2,31,775/ - ON THE GROUND THAT THE ASSESSEE COULD NOT FURNISH CONFIRMATION FROM THE C REDITORS WHICH LED AO TO CONCLUDE THAT THE AFORESAID SUNDRY CREDITORS IS NOT GENUINE . IT WAS CLAIMED THAT THE ASSESSEES APPEAL BEFORE LEARNED CIT(A) IN QUANTUM STOOD DISMISSED AND THE ASSESEE DID NOT CHALLENGE ADDITIONS IN QUANTUM BEFORE ITAT. IT WAS SUBMITTED THAT FULL PARTICULARS WERE DISCLOSED IN THE RETURN OF INCOME FILED WITH THE REVENUE. IT WAS SUBMITTED THAT NO COGENT INCRIMINATING MATERIAL WAS BROUGHT ON RECORD BY THE AO TO PROVE TH AT THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PARTICU LARS OF INCOME . OUR ATTENTION WAS DRAWN TO PAGE NO. 68 OF THE PAPER BOOK FILED WITH THE TRIBUNAL WHEREIN AUDITED BALANCE SHEET OF THE ASSESSEE AS AT 31.03.2009 IS PLACED WHEREIN UNDER THE HEAD CURRENT LIABILITIES , SUNDRY C REDITORS WERE SHOWN OF RS. 3,2 1,775/ - . OUR ATTENTION WAS ALSO DRAWN TO P AGE NO. 73 /PAPER BOOK, WHERE IN SUB - SCHEDULE TO AUDITED FINANCIAL STATEMENTS FOR THE YEAR ENDED 31.03.2009 IS PLACED, WHEREIN BREAK - UP OF SUNDRY CR EDITORS IS REFLECTED WHICH SHOWED AN AMOUNT OF RS. 2,31,775/ - PA YABLE TO M/S I.T.A. NO.1290/MUM/2017 7 | P A G E ALOK TEXTILE TRADERS. I T WAS SUBMITTED THAT THIS CONCERN M/S ALOK TEXTILE TRADER S STOOD MERGED WITH M/S ALOK TEXTILE S LTD. . IT WAS SUBMITTED THAT THE ASSESSEE COULD NO T OBTAIN BALANCE CONFIRMATION FROM THIS PARTY BUT AMOUNT IS PAYABLE BY THE A SSESSEE TO THIS PARTY WHICH IS REFLECTED AS PAYABLE TO SAID CONCERN M/S ALOK TEXTILE TRADERS(NOW ALOK TEXTILES LIMITED) IN ITS BOOKS OF ACCOUNTS AS AT 31.03.2009 . IT WAS SUBMITTED THAT MERELY BECAUSE CONFIRMATION COULD NOT BE FILED , IT DOES NOT PROVE THA T THIS CREDITOR IS NOT GENUINE. IT WAS SUBMITTED THAT NO COGENT INCRIMINATING MATERIAL IS BROUGHT ON RECORD BY AUTHORITIES BELOW TO PROVE THAT THE SAID CREDITOR IS NOT GENUINE . OUR ATTENTION WAS DRAWN TO PAGE NO. 98 OF THE PAPER BOOK WHEREIN DECISION OF I TAT, MUMBAI IN THE CASE OF SHIVA PIGMENTS PRIVATE LIMITED V. ITO IN ITA NO. 3091/MUM/2011 FOR AY 2007 - 08, ORDER DATED 18.07.2012 , PARA NO. 8 WHEREIN PENALTY U/S 271(1)(C) ON THE SIMILAR GROUNDS OF ADDITIONS MADE U/S 41(1) WERE DELETED BY ITAT, MUMBAI . 6. 2 ON THE SECOND ISSUE ON WHICH PENALTY WAS LEVIED U/S 271(1)(C) OF THE 1961 ACT , I T WAS SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE DECLARED INCOME FROM RENT OF RS. 10,98, 000/ - UNDER THE HEAD I NCOME FROM HOUSE PROPERTY AND STATUTORY DEDUCTION U/S. 24(1) WERE ALSO CLAIMED. THE SAID DEDUCTION U/S 24(1) WERE DENIED TO THE ASSESSEE AS THE INCOME FROM RENT WAS ASSESSED TO TAX BY THE AO UNDER THE HEAD INCOME FROM OTHER S OURCES . IT WAS SUBMITTED THAT THERE WAS MERELY A CHANGE OF HEAD OF INCOME FROM INCOME FROM HOUSE PROPERTY UNDER WHICH INCOME WAS OFFERED TO TAX BY THE ASSESSEE , TO OTHER HEAD OF INCOME INCOME FROM OTHER SOURCES UNDER WHICH THE AO ASSESSED THE SAID INCOME TO TAX, WHICH AS PER LEARNED COUNSEL FOR THE ASSESSEE WILL NOT ENT AIL LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. O UR ATTENTION WAS BROUGHT TO THE ORDER OF THE ITAT IN ASSESSE ES OWN CASE IN ITA NO. 1213/MUM/2011 FOR AY 2003 - 04 , VIDE APPELLATE ORDER DATED 09.02.2015 WHEREIN THE RENTAL INCOME WAS HELD TO BE CH ARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS AGAINST OFFERED TO TAX BY THE ASSESSEE UNDER THE HEAD PROFITS AND I.T.A. NO.1290/MUM/2017 8 | P A G E GAINS OF BUSINESS OR PROFESSION BY THE AUTHORITIES BELOW AND IT WAS HELD BY TRIBUNAL THAT NO PENALTY CAN BE LEVIED U/S 271 (1)(C) FOR MERELY CHANGE OF HEAD UNDER WHICH INCOME WAS ASSESSED VIS - A - VIS THE HEAD OF INCOME UNDER WHICH THE INCOME WAS OFFERED TO TAX BY THE ASSESSEE. IT IS CLAIMED BY THE ASSESSEE , THUS, NO PENALTY CAN BE LEVIED U/S 271(1)(C) IN THE CASE WHERE THERE I S MERELY A CHANGE OF HEAD OF INCOME IN WHICH INCOME WAS BROUGHT TO TAX BY THE AUTHORITIES VIS - A - VIS HEAD OF INCOME IN WHICH INCOME WAS OFFERED TO TAX BY THE ASSESSEE . THE SAID ORDER OF THE TRIBUNAL IS PLACED IN PAPER BOOK/PAGE 83 - 85. O UR ATTENTION WAS ALS O DRAWN TO ASSESSMENT ORDER (S) FOR AY 2002 - 03, 2004 - 05 TO 2006 - 07 PASSED BY THE AO U/S 143(3) READ WITH SECTION 147 OF THE 1961 ( PLACED IN PAPER BOOK /PAGE 75 - 82) IN ASSESSEES OWN CASE , WHEREIN CONSISTENTLY THE AUTHORITIES ARE BRINGING TO TAX RENTAL INC OME UNDER THE HEAD INCOME FROM HOUSE P ROPERTY AND DEDUCTION U/S 24(1) WAS ALLOWED . THE ASSESSEE ALSO RELIED UPON D ECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. BENNETT COLEMAN & CO. LTD (2013) 259 CTR 383 (BOM) AND IT WAS CONTENDED THAT MERE CHANGE OF HEAD OF INCOME BY AUTHORITIES TO BRING THE INCOME TO TAX WHICH OTHERWISE WAS DECLARED IN RETURN OF INCOME FILED WITH THE REVENUE W ILL NOT LEAD TO LEVY OF PENALTY U/S 271(1)(C) OF THE 1961 ACT. THE ASSESSEE ALSO RELIED UPON DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PRIVATE LIMITED REPORTED REPORTED IN (2010) 322 ITR 158(SC). 7 . THE LD. DR ON THE OTHER HAND SUBMITTED THAT PENALTY PROCEEDINGS U/S 271(1)(C) OF THE 1961 ACT WERE INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND IT WAS ALSO LEVIED ON THE SAME GROUND . IT WAS SUBMITTED THAT THE ASSESSEE WAS DULY CON FRONTED AS TO THE CHARGE WHICH THE ASSESSEE HAS TO MEET AND THE ASSESSEE DULY PARTICIPATED IN PENALTY PROCEEDINGS. IT WAS SUBM ITTED BY LEARNED DR THAT NOW THE ASSESSEE CANNOT TURN AROUND AND COMPLAINT THAT NOTICE ISSUED BY THE AO U/S 271(1)(C) READ WITH SECTION 274 IS DEFECTIVE. THE LD. DR RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF I.T.A. NO.1290/MUM/2017 9 | P A G E EARTHMOVING EQUIPMENT SERVICE COR PORATION V. DCIT IN ITA NO. 6617/MUM/2014 FOR AY 2010 - 11 VIDE ORDER DATED 02.05.2017. THE LEARNED DR ALSO RELIED UPON DECISION IN THE CASE OF DHAVAL K. JAIN V. ITO IN ITA NO. 996/MUM/2014 FOR AY 2003 - 04 . THE LEARNED DR ALSO RELIED UPON DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. SMT. KAUSHALYA ( 1995 ) 216 ITR 660 ( BOM ). O N MERITS IT WAS SUBMITTED THAT NO BALANCE CONFIRMATION WAS SUBMITTED BY THE ASSESSEE FROM M/S ALOK TEXTILE TRADERS AND HEN CE ADDITIONS WERE MADE U/S. 41(1 ) OF THE 1961 ON THE GROUND THAT THIS CREDITOR IS NOT GENUINE . ON SECOND ISSUE. IT WAS SUBMITTED BY LEARNED DR THAT AS SESSEE HAS WRONGLY DECLARED RENT RECEIVED FROM PROPERTY T AKEN ON LEAVE & LICENCE BASIS UNDER THE HEAD INCOME AND HOUSE PROPERTY WHILE THE SAID INC OME IS REQUIRED TO BE BROUGHT TO TAX UNDER THE HEAD I NCOME FROM OTHER SOURCES . IT WAS SUBMITTED THAT THE DEDUCTION U/S. 24 ( 1 ) WAS WRONGLY CLAIMED BY THE ASSESSEE . IT WAS ALSO SUBMITTED THAT FOR EARLIER YEAR IN ASSESSEES OWN CASE THE TRIBUNAL HAS DELET ED THE PENALTY FOR AY 2003 - 04 IN ITA NO. 1213/MUM/2011 VIDE ORDER DATED 09.02.2015 ON THE GROUNDS THAT MERE CHANGE OF HEAD OF INCOME UNDER WHICH INCOME IS CHARGEABLE TO TAX WILL NOT ENTAIL PENALTY U/S 271(1)(C) OF THE 1961 ACT BUT IT WAS SUBMITTED BY LEAR NED DR THAT THE TRIBUNAL HAD NOT DEAL T WITH ISSUE OF WRONG CLAIM OF DEDUCTION U/S. 24 ( 1 ) OF THE 1961 ACT IN THE SAID ORDER. 8 . WE HAVE CONSIDERED RIVAL CONTENTION S AND PERUSED THE MATERIAL ON RECORD INCLUDING CITED CASE LAWS. WE HAVE OBSERVED THAT THE ADDITIONS TO THE INCOME OF THE ASSESSEE WERE MADE BY THE AO IN QUANTUM ASSESSMENT ON TWO COUNTS , FIRSTLY U/S 41(1) OF THE 1961 ACT TOWARDS AN AMOUNT OF RS. 2,31,775/ - SHOWN TO BE PAYABLE BY THE ASSESSEE IN ITS AUDITED FINANCIAL STATEMENTS TO M/S ALOK T EXTILE TRADERS AS ON 31.03.2009, ON THE GROUND THAT THE SAID LIABILITY IS NOT GENUINE AND HAD CEASED TO EXIST AS THE ASSESSEE WAS NOT ABLE TO PRODUCE CONFIRMATION FROM THE SAID PARTY BEFORE THE AO. THE ASSESSEE CLAIMED THAT THE SAID ALOK TEXTILE TRADERS S TOOD MERGED WITH M/S ALOK I.T.A. NO.1290/MUM/2017 10 | P A G E TEXTILES LIMITED AND IT WAS CITED AS ONE OF THE REASONS BY THE ASSESSEE FOR NOT GET TING CONFIRMATION FROM THE SAID PARTY. THE SAID SUM OF RS. 2,31,775/ - WAS, HOWEVER , DULY REFLECTED IN ITS AUDIT ED FINANCIAL STATEMENT S OF THE A SSESSEE COMPANY FOR THE YEAR ENDED 31.03.2009 AS PAYABLE TO M/S. ALOK TEXTILE TRADERS AND ALSO IN THE IMMEDIATELY PRECEDING YEAR ENDING 31.03.2008 AS IS REFLECTED IN CORRESPONDING FIGURES OF PRECEDING YEAR IN THE AUDITED FINANCIAL STATEMENT S FOR THE YEAR ENDED 31.03.2009 . THE AUDITED FINANCIAL STATEMENT FOR THE YEAR ENDED 31.03.2009 IS PLACED ON RECORD IN FILE IN PAPER BOOK . THE ASSESSEE HAS CLAIMED THAT THE SAID AMOUNT IS PAYABLE BY IT AND IT IS REFLECTED IN ITS BOOKS OF ACCOUNTS TO BE PAYABLE WHICH IS AC KNOWLEDGEMENT OF DEBT BY ASSESSEE TO SAID ALOK TEXTILE TRADERS AND THE LIABILITY HAS NOT CEASED TO EXIST . IT IS ALSO NOT A CASE WHERE THE SAID SUM IS UNILATERALLY CREDITED BACK BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS AND IN PROFIT AND LOSS ACCOUNT BUT NOT OFFERED FOR TAX. THE ASSESSEE IS CONSISTENTLY CLAIMING THAT THE LIABILITY TO PAY TO ALOK TEXTILE TRADERS IS SUBSISTING AND THE ASSESSEE IS LIABLE TO PAID . IT IS CLAIMED THAT COMPLETE DISCLOSURE S WERE MADE IN THE RETURN OF INCOME FILED WITH REVENUE AND IT COULD NOT BE SAID THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED THE PARTICULARS OF INCOME IN THE RETURN OF INCOME FILED WITH REVENUE . IT WAS ALSO EXPLAINED BY THE ASSESSEE THAT SAID M/S. ALOK TEXTILE TRADERS GOT MERGED WITH M/S. ALOK TEXTILE S LTD. WHICH IS THE MAIN REASON THAT THE ASSESSE E COULD NOT BRING THE CONFIRMATION WHICH LED TO THE ADDITION TO THE INCOME OF THE ASSESSEE BY THE AO IN QUANTUM ASSESSMENT U/S. 41(1) OF THE 1961 ACT. T HE APPEAL FILED BY THE ASSESSEE W ITH LD. CIT(A) AGAINST QUANTUM ASSESSMENT ALSO STOOD DISMISSED AND THE A D DITIONS ATTAINED FINALITY AS NO FURTHER APPEAL WAS FILED AGAINST QUANTUM ASSESSMENT BY THE ASSESSEE WITH TRIBUNAL . THIS LED TO THE LEVY OF PENALTY U/S 271(1)(C) BY THE AO AGAINST THE ASSESSEE FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WHICH WAS LATER CONFIRMED BY LD. CIT(A) VIDE ITS APPELLATE ORDER . IN OUR CONSIDER ED VIEW KEEPING IN VIEW FACTUAL MATRIX OF THE CASE , PENALTY IS NOT LEVIABLE ON THIS GROUND I.T.A. NO.1290/MUM/2017 11 | P A G E BECAUSE ASSESSEE HAD M ADE ACKNOWLEDGMENT OF THE DEBT IN ITS AUDIT ED FINANCIAL STATEMENT FOR THE YEAR UNDER CONSIDERATION AND CONSISTENTLY CLAIM IS MADE THAT THE SAID LIABILITY HAS NOT CEASED TO EXIST AND THE ASSESSEE IS LIABLE TO PAY SAID SUM TO M/S ALOK TEXTILE TRADERS( NOW AL OK TEXTILES LIMITED) . THE ASSESSEE ALSO MADE COMPLETE DISCLOSURE IN THE RETURN OF INCOME FILED WITH THE REVENUE AS TO THE AFORESAID LIABILITY PAYABLE BY THE ASSESSEE AND SAID SUM STOOD REFLECTED AS PAYABLE BY THE ASSESSEE IN ITS AUDITED BOOKS OF ACCOUNTS . THE AUDITORS HAVE ALSO NOT MADE ANY ADVERSE COMMENTS AS TO THE SUBSISTENCE OF THIS LIABILITY. M ERELY BECAUSE THE CONTENTIONS OF THE ASSESSEE STOOD DISMISSED BY THE REVENUE IN QUANTUM ASSESSMENT WHEREIN ADDITIONS TO INCOME WERE MADE U/S 41(1) OF THE 1961 ACT ON THE GROUNDS THAT SAID LIABILITY HAS CEASED TO EXIST , LEVY OF PENALTY U/S 271(1)(C) IS NOT AUTOMATIC . THE ASSESSEE IS CLAIMING THE SAID AMOUNT IS STILL PAYABLE AND THE AFORESAID AMOUNT IS DULY REFLECTED IN ITS AUDIT ED FINANCIAL STATEMENT FOR YEAR EN DED 31.03.2009 AS PAYABLE BY THE ASSESSEE TO SAID CONCERN WHICH IS ACKNOWLEDGMENT OF DEBT BY THE ASSESSEE . SINCE T HE ASSESSEE WAS NOT ABLE TO BRING CONFORMATION FROM THE SAID PARTY COULD BE A VALID REASON AND JUSTIFICATION FOR MAKING ADDITIONS TO THE INCOME OF THE ASSESSEE IN QUANTUM ASSESSMENT BY THE AO BUT THAT IS NOT SUFFICIENT TO LEVY PENALTY U/S 271(1)(C) AS THE BURDEN ON REVENUE UNDER PENALTY PROVISIONS ARE ON HIGHER PEDESTAL. THE ASSESSEE HAS OFFERED AN EXPLANATION WHICH IS A BONAFIDE EX PLANATION AS TO EXISTENCE OF ITS LIABILITY TO SAID CONCERN AS ON 31.03.2009 WHICH IS ALSO REFLECTED TO BE PAYABLE IN ITS BOOKS OF ACCOUNTS . THE ASSESSEE DID DISCHARGE ITS BURDEN AS IS LAID ON IT UNDER PENALTY PROVISIONS AS IS CONTAINED IN SECTION 271(1)(C ) OF THE 1961 ACT. NOW IT IS FOR THE REVENUE TO REBUT THE SAME WITH COGENT INCRIMINATING MATERIAL THAT EXPLANATION OFFERED BY THE ASSESSEE IN PENALTY PROVISIONS ARE FALSE. THE REVENUE DID NOT BRING ANY INCRIMINATING MATERIAL TO PROVE THAT THE SAID LIABILIT Y CEAS ED TO EXIST AND THE ASSESSEE HAD OBTAINED ANY BENEFIT AS IS CONTEMPLATED U/S 41(1) OF THE 1961 ACT. THE AO DID NOT MADE ANY ENQUIRY WITH THE AFORE SAID PARTY AS NO NOTICES U/S. 133(6) OR SUMMONS U/S 131 WERE I.T.A. NO.1290/MUM/2017 12 | P A G E ISSUE D BY THE AO TO AL OK TEXTILE TRADERS ( NOW ALOK TEXTILES LIMITED) TO UNRAVEL TRUTH . THE AO HAS NOT BROUGHT ANY COGENT INCRIMINATING MATERIAL TO PROVE THAT THE ASSESSEE HAS OBTAINED ANY BEN EFIT AS IS CONTEMPLATED U/S. 41(1) OF THE 1961 ACT. THE ASSESSEE HAS RIGHTLY RELIED ON THE DECISION OF ITA T, MUMBAI BENCHES IN THE CASE OF SHIVA PIGMENTS PRIVATE LIMITED V. ITO IN ITA NO. 3091/MUM/2011 , ORDER DATED 18.07.2012. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW KEEPING IN VIEW FACTUAL MATRIX OF THE CASE THAT NO PENALTY U/S 271(1)(C) IS EXIG IBLE ON THE ASSESSEE AND WE HEREBY ORDER DELETION OF THE PENALTY AS WAS LEVIED BY THE AO ON THIS ISSUE WHICH STOOD LATER CONFIRMED BY LEARNED CIT(A) U/S 271(1)(C) . WE ORDER ACCORDINGLY. 9.2 . SECONDLY PENALTY WAS LEVIED BY REVENUE ON THE GROUND THAT RENTAL INCOME F ROM SUB - LETTING OF PREMISES TAKEN ON LEAVE AND LICE N SE BASIS OF 750 SQUARE FEET AT 2 ND FLOOR AND OPEN SPACE OF 4800 SQUARE FEET ON GROUND ADJOINING TO THE BUILDING SITUATED AT 36, MAROL CO - OPERATIVE INDUSTRIAL ESTATE , MR VASANJI ROAD, ANDHERI EAST, MUMBAI - 400059 WAS DECLARED UNDER THE HEAD INCOME FROM HOUSE PROPERTY OF WHICH THE ASSESSEE WAS NOT OWNER WHILE THE SAME OUGHT TO HAVE BEEN DECLARED UNDER THE HEAD INCOME FROM OTHER SOURCES AND THE ASSESSEE HAS ALSO WRONGLY CLAIMED THE STATUTORY DEDUCTION U/S 24(1) OF THE 1961 ACT. W E HAVE OBSERVED THAT THE ASSESSEE HAS TAKEN PREMISES ON LEAVE & LICENCE BASIS FROM ITS DIRECTOR WHICH WAS FUR THER SUBLET BY THE ASSESSEE . THE INCOME FROM SUB - LETTING OF THE SAID PREMISES WAS OFFERED FOR TAXATION BY THE ASSESS EE UNDER THE HEAD INCOME FROM HOUSE P ROPERTY AND AS A CONSEQUENCE THERETO STATUTORY DEDUCT ION OF 30% ON ACCOUNT OF R EPAIR AND M AINTENANCE WAS ALSO CLAIMED BY THE ASSESSEE U/S. 24 ( 1 ) OF THE 1961 ACT . THE AO WHILE FRAMING QUANTUM ASSESSMENT OBSERVED THAT THE ASSESSEE IS NOT OWNER OF THE PREMISES WHICH IS A STATUTOR Y CONDITION U/S. 22 OF THE ACT TO BRING THE RENTAL INCOME TO TAX UNDER THE HEAD INCOME FROM HOUSE P ROPERTY . THIS LED THE AO TO BRING THE SAID INCOME FROM SUB - LETTING OF THE AFORESAID PROPERT Y TAKEN BY THE ASSESSEE ON LEAVE AND LICENSE BASIS TO TAX UNDER I.T.A. NO.1290/MUM/2017 13 | P A G E THE HEAD I NCOME FROM OTHER SOURCES A ND CONSEQUENTIALLY DEDUCTION U/S. 24 ( 1 ) OF THE 1961 ACT WAS ALSO DENIED TO THE ASSESSEE BY THE AO IN QUANTUM ASSESSMENT . THE LD. CIT(A) LATER CONFIRM ED THE DECISION OF THE AO BY DISMISSING THE APPEAL OF THE ASSESSEE ON THIS GROUND AND MATTER REACHED FINALITY AS NO APPEAL WAS FILED BY THE ASSESSEE AGAINST QUANTUM ADDITIONS BEFORE ITAT. I T IS ALSO OBSERVED T HAT IN ASSESSEES OWN CASE FOR AY 2003 - 04, THE SA I D INCOME WAS OFFERED TO TAX BY THE ASSESSEE UNDER THE HEAD PROFITS AND GAINS FROM B USINESS OF PROFESSION IN THE RETURN OF INCOME FILED WITH THE REVENUE BUT THE AUTHORITIES BELOW TREATED THE SAID INCOME AS I NCOME FROM HOUSE PROPERTY AND PENALTY U/S 271 (1)(C) OF THE 1961 ACT WAS LEVIED ON THE CHANGE OF HEAD OF INCOME UNDER WHICH THE INCOME WAS HELD TO BE TAXABLE, WHILE FRAMING ASSESSMENT . THE ITAT WAS PLEASED TO DELETE THE PENALTY LEVIED BY THE AO U/S 271(1)(C) WHICH WAS LATER CONFIRMED BY LEARNED CIT( A), IN ASSESSEES OWN CASE IN ITA NO. 1213/MUM/2011 FOR AY 2003 - 04 , VIDE APPELLATE ORDER DATED 09.02.2015 BY HOLDING AS HEREUNDER: - 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE R ECORDS. THE LD. A.R. OF THE ASSESSEE HAS STATED THAT IN THE PAST SUCH RENTAL INCOME FROM WAREHOUSING PREMISES WAS TREATED AS BUSINESS INCOME. HOWEVER, IN THE REOPENED ASSESSMENT PROCEEDINGS, THE ASSESSEE FAIRLY CONCEDED TO THE CHANGE OF HEAD OF INCOME AS P ROPOSED BY THE AO. THERE WAS NEITHER FURNISHING OF INACCURATE PARTICULARS OF INCOME NOR OF CONCEALMENT OF INCOME. AFTER HEARING THE LD. REPRESENTATIVE, WE AGREE WITH THE CONTENTION OF THE ASSESSEE THAT IT WAS NOT A CASE OF FURNISHING OF INACCURATE PARTICUL ARS OF INCOME OR CONCEALMENT OF INCOME. THE ASSESSEE EVEN HAD FAIRLY AGREED TO THE CHANGE OF HEAD OF INCOME DURING THE REASSESSMENT PROCEEDINGS. EVERY CASE WHERE THE CLAIM OF THE ASSESSEE IS NOT ACCEPTED CANNOT BE SAID TO BE A CASE OF CONCEALMENT OF INCOME . THE ADDITION IN THIS CASE HAS BEEN MADE BECAUSE OF CHANGE OF HEAD OF INCOME AND NOT BECAUSE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. IT IS NOT A CASE WHERE THE ASSESSEE HAD DELIBERATELY SHOWN THE INCOME UNDER A WRONG HE AD BUT UNDER A BONAFIDE BELIEF THAT THE INCOME OF THE ASSESSEE WAS ASSESSABLE AS BUSINESS INCOME. IN VIEW OF THIS, WE DO NOT THINK IT TO BE A CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE PENALTY LEVIED BY LOWER AUTHORITIES IS THEREFORE ORDERED TO BE DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. I.T.A. NO.1290/MUM/2017 14 | P A G E THUS, TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2003 - 04 WAS PLEASED TO DELETE PENALTY U/S 271(1)(C) BY HOLDING THAT THERE WAS NO FURNISHING OF INACCURATE PARTICULARS OF INCOME NOR THERE WAS CONCEALMENT OF INCOME WHE N THE HEAD OF INCOME TO ASSESS INCOME WAS CHANGED FROM BUSINESS INCOME TO INCOME FROM HOUSE PROPERTY . W E HAVE ALSO OBSERVED THAT THE AO WHILE FRAMING ASSESSMENT FOR AY 2002 - 03, 2004 - 05 TO 2006 - 07 VIDE SEPARA TE ASSESSMENT ORDER S FOR ALL THESE YEARS ALL DATED 29.10.2009 PASSED U /S. 143(3) R.W.S. 147 OF THE 1961 AC T, H AS A SSES S ED THE SAID INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND STATUTORY DEDUCTION U/S 24(1) TOWARDS REPAIRS AND MAINTENANCE WAS ALS O ALLOWED BY THE AO ALTHOUGH THE SAME WAS DECLARED TO BE BUSINESS INCOME BY THE ASSESSEE IN RETURN OF INCOME FILED FOR ALL THESE YEARS ( REFER PAGE 75 - 82/PB). THE ASSESSEE FOR IMPUGNED ASSESSMENT YEAR ALSO DECLARED THE SAID RENTAL INCOME FROM SUB - LETTING AS INCOME FROM HOUSE PROPERTY AND CLAIMED DEDUCTION U/S 24(1) OF THE 1961 ACT, S O THERE WAS A BONAFIDE BELIEF ON THE PART OF THE ASSESSEE IN BRINGING TO TAX SAID INCOME TO TAX UNDER THE HEAD I NCOME FROM HOUSE PROPERTY WHILE FILING RETURN OF INCOME WHICH LED ASSESSEE TO OFFER THE SAID INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY DESPITE THE FACT THAT THE ASSESSEE WAS NOT OWNER OF THE SAID PROPERTY AND CONS EQUENTIAL DEDUCTION U/S. 24 ( 1 ) WERE ALSO CLAIMED BY THE ASSESSEE BECAUSE REASSESSMENT PROCEEDINGS FOR ALL THESE YEARS AY 2002 - 03, 2004 - 05 TO 2006 - 07 WERE UNDERWAY WHEN THE ASSESSEE FILED RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR VIZ. AY 2009 - 10 . NO DOUBT SINCE THE ASSESSEE WAS NOT OWNER OF THE PREMISES , THE AO HA D A VALID REASON FOR CHANGING HEAD OF INCOME WHILE MAKING QUANTUM ASSESSMENT BY BRINGING THE SAID INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF BEING TREATED AS INCOME FROM HOUSE PROPERTY AND CONSEQUENTIAL DENIAL OF DEDU CTION U/S 24(1) OF THE 1961 ACT BUT MERELY BECAUSE THERE WAS A CHANGE OF HEAD OF INCOME WHILE ASSESSING INCOME , KEEPING IN VIEW FACTUAL MATRIX OF THE CASE , PENALTY U/S 271(1)(C) IS NOT EXIGIBLE AS T HE ASSESSEE HAS BONAFIDE BELIEF THAT INCOME IS REQUIRED TO BE OFFER ED TO TAX UNDER THE HEAD I.T.A. NO.1290/MUM/2017 15 | P A G E INCOME OF HOUSE PROPERTY AS THE REASSESSMENT PROCEEDINGS U/S 147 FOR AY 2002 - 03,2004 - 05 TO 2006 - 07 STARTED ON 23.03.2009 WHEN THE AO ISSUED NOTICE U/S 148 OF THE 1961 ACT TO THE ASSESSEE TO BRING TO TAX, RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY INSTEAD OF BUSINESS INCOME AS WAS DECLARED BY THE ASSESSEE IN ALL THESE YEARS, WHICH FINALLY LED TO REASSESSMENT ORDERS , ALL DATED 29.10.2009 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT BRINGING SAID INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY FOR ALL THE AFORESAID ASSESSMENT YEARS . THE ASSESSEE FILED ITS RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR 2009 - 10 ON 26.09.2009 WHEREIN SAID INCOME WAS DECLARED AS INCOME FROM HOUSE PROPERTY AS THE REASSESSMENT PROCEEDINGS FOR AY 2002 - 03 , 2004 - 05 TO 2006 - 07 WERE UNDERWAY ON 26.09.2009 (DATE WHEN ASSESSEE FILED RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR) WHEREIN THE REVENUE WAS INTENDING TO BRING TO TAX SAID INCOME UNDER THE HE A D INCOME FROM HOUSE PROPERTY , THUS THERE WAS A BONAFIDE REASON S BEFORE THE ASSESSEE TO DECLARE SAID INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AS THE REVENUE FOR EARLIER YEARS WERE ATTEMPTING TO BRING SAID INCOME TO BE ASSESSED AS INCOME FROM HOU SE PROPERTY AND THE ASSESSEE WAS AGREEING FOR EARLIER YEARS FOR THE SAID INCOME TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY DURING REASSESSMENT PROCEEDINGS TO AVOID ANY FURTHER LITIGATION WITH REVENUE . THUS, OBVIOUSLY WITH A VIEW TO AVOID LITIGATION FOR T HE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED RETURN OF INCOME ON 26.09.2009 DECLARING RENTAL INCOME FROM SUB - LETTING AS INCOME FROM HOUSE PROPERTY DESPITE THE FACT THAT THE ASSESSEE BEING NOT OWNER OF THE SAID PROPERTY. THE EXPLANATION PUT FORWARD BY TH E ASSESSEE IS BONAFIDE WHICH TAKES IT OUT FROM THE CLUTCHES OF PENALTY PROVISIONS AS ARE CONTAINED IN SECTION 271(1)(C) OF THE 1961 ACT , AND WE HEREBY ORDER DELETION OF THE PENALTY LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT. THUS, ON B OTH THE COUNTS ON ME RITS PENALTY AS LEVIED BY THE AO U/S 271(1)(C) WHICH WAS LATER CONFIRMED BY LEARNED CIT(A) STOOD DELETED. SINCE, WE HAVE ALREADY DELETED THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE 1961 ACT WHICH WAS LATER CONFIRMED BY LEARNED CIT(A) I.T.A. NO.1290/MUM/2017 16 | P A G E ON BOTH THE COUN TS ON MERITS, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL HAS BECOME ACADEMIC AND WE ARE NOT INCLINED TO DECIDE THE SAME. WE ORDER ACCORDINGLY. 10 . THE APPEAL OF THE ASSESSEE IN ITA NO. 1290/MUM/2017 FOR AY 2009 - 10 IS ALLOWED AS INDICATED ABOVE ORDER PRONO UNCED IN THE OPEN COURT ON 0 1 .05 .2019. 0 1 .05 .2019 S D / - S D / - (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 1 .05 .2019 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI