SUBHASH BHASKAR UTTURKAR, MUMBAI V. ITO 18(2)(2), MUMBAI

ITA 1364/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2089 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C KANOJIA
• Assessee Lawyers: ASHOK D SHAH
• Keywords: Business income
• Section: 147

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY , JM AND SHRI MANOJ KUMAR AGGARWAL , AM ./ I.T.A. NO. 1364/MUM/2015 ( / ASSESSMENT YEAR: 2007 - 2008 ) SUBHASH BHASKAR UTTURKAR, 14 - B, MEHTA APARTMENTS, PROF. AGASHE MARG, DADAR, MUMBAI 400 025. / VS. INCOME TAX OFFICER 1 8(2)(2) MUMBAI. ./ ./ PAN/GIR NO. A AAPU1559G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ASHOK D. SHAH / RESPONDENT BY : SHRI K.C. KANOJIA / DATE OF HEARING : 27/10/2016 / DATE OF PRONOUNCEMENT : 11 /11 /2016 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2007 - 08 IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 33 [CIT(A)], MUMBAI DATED 10/12/2014 , WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY ASSESSING 2 ITA NO. 1364 /MUM / 2015 SUBHASH BHAS KAR UTTURKAR ASSESSMENT YEAR 2007 - 2008 OFFICER [AO] UNDER SECTION 271B OF THE INCOME TAX ACT, 1961 [IN SHORT THE ACT] DATED 11/04/2012. 2. THE ONLY ISSUE IN THIS APPEAL IS WITH REGARD TO PENALTY IMPOSED UNDER SECTION 271B OF THE ACT FOR RS.1.00 LACS FOR THE FAILURE TO GE T THE ACCOUNTS AUDITED IN TERMS OF SECTION 44AB OF THE ACT. 3. UNDISPUTED F AC TS QUA THE DIS PUTE ARE THAT THE ASSESSEE IS A RESIDENT INDIVIDUAL WHO FILED ITS RETURN OF INCOME BELATEDLY ON 31/03/2008 FOR IMPUGNED AY DECLARING TOTAL INCOME OF RS. 1,85,690/ - AND CLAIMED SET - OFF OF CAPITAL GAINS CARRIED FORWARD LOSS OF RS. 4,41,281/ - . THE RETURN WAS PROCESSED U/S 143(1). SUBSEQUENTLY, THE CASE WAS RE - OPENED U/S 147 AS RETURN WAS FILED BEYOND DUE DATE AND ACC ORDINGLY SET - OFF OF BROUGHT FORWARD LOSSES WAS NOT ALLOWED TO THE ASSESSEE. FURTHER, THE ASSESSEE CARRIED OUT SHARE TRANSACTIONS DURING THE YEAR AND OFFERED THE SAME UNDER THE HEAD CAPITAL GAINS BUT AFTER CONSIDERING THE NATURE OF TRANSACTIONS CARRIED OU T BY ASSESSEE, AO TREATED THE SAME TO BE TAXABLE UNDER THE HEAD BUSINESS INCOME. CONSEQUENTLY AS TURNOVER OF THE ASSESSEE EXCEEDED THE LIMIT SPECIFIED IN SECTION 44AB OF THE ACT AND SINCE THE ASSESSEE FAILED TO GET THE ACCOUNTS AUDITED , AN AMOUNT OF RS. 1.00 LACS WAS IMPOSED AS PENALTY U/S 271B VIDE PENALTY ORDER DATED 11/04/2012 . THE SAME WAS UPHELD BY FIRST APPELLATE AUTHORITY , AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 4 . A T THE OUTSET, LD. COUNSEL FOR ASSESSEE POINTED OUT THAT SIMILAR PENALTY WAS IMPOSED IN SIMILAR CIRCUMSTANCES FOR AY 2008 - 2009 IN ASSESSEES OWN CASE BUT THE SAME HAS BEEN DELETED BY TRIBUNAL VIDE ITA N.1365/MUM/2015 DATED 17/08/2016, A COPY OF WHICH HAS BEEN P LACED BEFORE US. UPON PERUSAL, WE FIND THE TRIBUNAL HAS MADE FOLLOW ING OBSERVATIONS IN ASSESSEES OWN CASE FOR AY 2008 - 2009 : - WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THE PRESENT CASE, IT IS QUITE EVIDENT THAT ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNT. OSTENSIBLY, THE FAILURE TO MAINTAIN BOOKS OF ACC OUNT CAN LEAD TO LEVY OF PENALTY UNDER SECTION 271A OF THE ACT AND PENALTY UNDER SECTION 271B OF THE ACT CANNOT BE LEVIED FOR FAILURE TO MAINTAIN BOOKS OF ACCOUNT. THE AFORESAID PROPOSITION HAS BEEN LAID DOWN BY THE HONBLE GAUHATI HIGH COURT IN THE CASE O F SURAJMAL PARSURAM TODI VS CIT, 222 ITR 691 (GAU) 3 ITA NO. 1364 /MUM / 2015 SUBHASH BHAS KAR UTTURKAR ASSESSMENT YEAR 2007 - 2008 AND IN OUR VIEW THE FACTS OF THE PRESENT CASE ARE FULLY COVERED BY THE SAID JUDGMENT. ACCORDINGLY, WE SET - ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS. 1.00 LA CS IMPOSED UNDER SECTION 271B OF THE ACT. THE LD. DR FAIRLY CONCEDED THE ABOVE POSITION AND COULD NOT POINT ANY DISTINCTION BETWEEN THE FACTS OR CIRCUMSTANCES OF THE TWO YEARS. THEREFORE, RESPECTFULLY FOLLOWING THE JUDICIAL DISCIPLINE, WE DIRECT AO TO DE LETE THE IMPUGNED PENALTY. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH NOVEMBER , 201 6 SD/ - SD/ - ( SAKTIJIT DEY ) ( MANOJ KUMAR AGGARWAL ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 .11 .201 6 PS: - POOJA K. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPE LLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 4 ITA NO. 1364 /MUM / 2015 SUBHASH BHAS KAR UTTURKAR ASSESSMENT YEAR 2007 - 2008 SR. NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATION SHEETS ARE ATTACHED SELF TYPED ON COMPUTER BY MEMBER SR.PS/PS 2 DRAFT DICTATED ON SR.PS/PS 3 DRAFT PLACED BEFORE AUTHOR SR.PS/PS 4 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 5 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 6 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 7 ORDER PRONOUNCEMENT ON SR.PS/PS 8 FILE SENT TO THE BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE AR 11 DATE OF DISPATCH O F ORDER