AMBICO INEGRATED MARKETING, MUMBAI V. ASST CIT 15(2), MUMBAI

ITA 1350/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0669 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 27-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide mistake
• Section: 271(1)(c); 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 1350 /MUM/201 7 (A.Y: 2010 - 11) M/S. AMBICO INTEGRATED MARKETING 701 - 702, SHRI SAI CORPORATE PARK, NEXT TO POLARIS TOWER, OPP. LAXMI NAGAR, INDUSTRIAL ESTATE, GOREGAON (W), MUMBAI - 400 090 PAN: AAKFA 3934 B V. A.C.I.T 15(2) C - 13, ROOM NO. 111 1 ST FLOOR , PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI 400 051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JITENDRA JAIN DEPARTMENT BY : SHRI ANOOP HIWASE DATE OF HEARING : 21 .08.2018 DATE OF PRONOUNCEMENT : 14 .11 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 42, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] IN SUSTAINING THE PENALTY OF .62,042/ - LEVIED U/S. 271(1)(C) OF THE ACT. 2. BRIEFLY STATED THE FACTS ARE T HAT, THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT NOTICED THAT THE ASSESSEE DEBITED PROPERTY 2 ITA NO.1350/MUM/2017 (A.Y: 2010 - 11) M/S. AMBICO INTEGRATED MARKETING TAX OF .2, 0 0 ,7 78 / - TO THE P&L ACCOUNT WHICH WAS UNPAID AND OUTSTANDING. HE ALSO NOTICED THAT THE EXPENSES WERE NOT DISALLOWED BY THE ASSESSEE U/S. 43B OF THE ACT, AS THE SAID EXPENSES ARE TO BE ALLOWED ON ACTUAL TIME IN BASIS, ACCORD INGLY, THE SAME WERE DISALLOWED AND ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS. BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT BY LETTER DATED 15.03.2013 THE ASSESSEE ON REALIZING ITS MISTAKE OFFERED THIS AMOUNT FOR TAXATION U/S.43B OF THE ACT. IT WAS CONTENDED THAT THERE WAS NO WILLFUL SUPPRESSION OF FACTS BUT IT WAS A GENUINE MISTAKE FOR WHICH THE PENALTY CANNOT BE LEVIED. HOWEVER, THE LD.CIT(A) SUSTAINED THE PENALTY O N THE SAID DISALLOWANCE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS AN INADVERTENT MISTAKE THAT THE ASSESSEE DID NOT DISALLOW THE SAID EXPENSES U/S.43B OF THE ACT, WHEN IT REALIZED IN THE COURSE OF ASSESSMENT PROCEEDINGS THE SAME WERE SURRENDERED A ND ACCEPTED FOR DISALLOWANCE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID EXPENSES WERE ALLOWED AS DEDUCTION IN THE ASSESSMENT YEAR 2012 - 13 WHEN THE PAYMENT WAS MADE. IT WAS SUBMITTED THAT THERE IS NO WILLFUL CONCEALMENT OR FURNISHING OF INACCUR ATE PARTICULARS OF INCOME, IT IS ONLY AN INADVERTENT MISTAKE. THE GENUINENESS OF THE EXPENSES IS NOT DOUBTED AND IT IS ONLY A QUESTION OF YEAR OF ALLOWABILITY AND THEREFORE, NO PENALTY SHOULD BE LEVIED. HE PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S. SILVER 3 ITA NO.1350/MUM/2017 (A.Y: 2010 - 11) M/S. AMBICO INTEGRATED MARKETING LAND DEVELOPERS (P.) LTD. V. ITO IN ITA.NO. 8444/MUM/2010 DATED 08.03.2013. 3. LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN THE COURSE OF A SSESSMENT PROCEEDINGS, THE ASSESSING OFFICER SEEMS TO HAVE CALLED FOR VARIOUS DETAILS AND THE ASSESSEE BY LETTER DATED 15.03.2013 SUBMITTED THAT, ON SCRUTINIZING THE ASSESSMENT DETAILS ASSESSEE CAME TO KNOW THAT INADVERTENTLY THEIR REMAINED TO BE DISALLOWE D THE UNPAID PROPERTY TAX. AS IT WAS NOT PAID BEFORE THE DUE DATE FOR FILING OF RETURN, THEREFORE, ASSESSEE REQUESTED TO DISALLOW THE PROPERTY TAX WHILE COMPUTING THE INCOME. IN THE PENALTY PROCEEDINGS IT WAS CONTENDED THAT UNPAID PROPERTY TAX IS INADVER TENTLY REMAIN ED TO BE DISALLOWED WHILE PREPARING THE INCOME TAX RETURN AND THERE IS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS. THE SAID DISALLOWANCE WAS MADE BY OVERSIGHT, HOWEVER WHILE COMPLYING THE DETAILS IN THE COURSE OF A SSESSMENT PROCEEDINGS ASSESSEE NOTICED THE INADVERTENT MISTAKE AND RECTIFIED BY REQUESTING THE ASSESSING OFFICER TO DISALLOW THE SAME, THEREFORE, IT WAS CONTENDED IT IS A BONAFIDE MISTAKE ON THE PART OF THE ASSESSEE, THEREFORE, NO PENALTY SHOULD BE LEVIED. ASSESSEE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS V. CIT [348 ITR 306] . THE ASSESSING OFFICER LEVIED 4 ITA NO.1350/MUM/2017 (A.Y: 2010 - 11) M/S. AMBICO INTEGRATED MARKETING THE PENALTY NOT APPRECIATING THE SUBMISSIONS OF THE ASSESSEE AND THE LD . CIT(A) SUSTAINED THE PENALTY. ON A TOTALITY OF THE FACTS AND CIRCUMSTANCES AS NARRATED ABOVE, WE FIND THAT THE MISTAKE OF NOT DISALLOWING THE PROPERTY TAX PAID APPEARS TO BE A BONAFIDE MISTAKE AND IN ANY CASE THE SAID EXPENSES ARE NOT IN DOUBT BUT ONLY THE ALLOWABILITY OF THE YEAR. IT IS NOT KNOWN AS TO WHAT DETAILS THE ASSESSING OFFICER HAS CALLED FOR, HOWEVER, THE ASSESSEE BY LETTER DATED 15.03.2013 SURRENDERED SAME AND IT WAS SUBMITTED THAT IT IS A BONAFIDE MISTAKE. IN THE CIRCUMSTANCES, WE DO NOT SEE ANY CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BUT IT IS ONLY DUE TO OVERSIGHT ASSESSEE DID NOT DISALLOW THE UNPAID PROPERTY TAX DURING THIS ASSESSMENT YEAR WHICH WAS ULTIMATELY ALLOWED AS EXPENSES IN ASSESSMENT YEAR 2012 - 13. THUS, WE DIRECT THE ASSESSING OFFICER T O DELETE THE PENALTY ORDER U/S. 271(1)(C) OF THE ACT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14 TH NOVEMBER , 2018 SD/ - SD/ - ( R AJESH KUMAR) ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 14 / 11 / 2018 GIRIDHAR , SR. PS 5 ITA NO.1350/MUM/2017 (A.Y: 2010 - 11) M/S. AMBICO INTEGRATED MARKETING COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM