Rajendra Pannalal Bora, Ahmednagar V. Dy. CIT, A'Nagar Circle, Ahmednagar

ITA 1394/PUN/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0734 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1394/PN/2013 '% % / ASSESSMENT YEAR : 2008-09 SHRI RAJENDRA PANNALAL BORA, A/P. GOPALGAON, TAL. RAHATA, AHMEDNAGAR PAN : AGNPB3855H . / APPELLANT V/S DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR . /RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER DATED 15-04-2013 OF THE CIT(A)-I, PUNE RELATING TO ASSES SMENT YEAR 2008-09. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN BY TH E ASSESSEE THEY ALL RELATE TO THE ORDER OF THE CIT(A) IN CON FIRMING THE LEVY OF PENALTY OF RS.14,08,281/- U/S.271(1)(C) OF THE I.T. ACT. / DATE OF HEARING :29.09.2016 / DATE OF PRONOUNCEMENT:05.10.2016 2 ITA NO.1394/PN/2013 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 25-12-2008 DECLARING LOSS OF RS.42,45,340/-. HOWEVER, THE ASSESSEE HAD PAID ADVANCE T AX OF RS.9,27,000/- AND CLAIMED REFUND OF RS.9,27,000/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO OBSERVED FROM THE COMPUTATION OF INCOME THAT THE ASSESSEE HAD SHOWN NET PROFIT OF RS.4,81,350/- AGAINST WHICH THE ASSESSEE HAD CLAIMED CARRY FORWARD LOSS OF RS.4,81,350/-. SIMILARLY, THE ASSESSEE HAD SHOWN OTH ER INCOME OF RS.96,938/- AGAINST WHICH ASSESSEE HAD CLAIMED DEDUCTION U/S.80C AND THEREBY HAD OFFERED NIL INCOME. THE ASSESSEE HAD ALSO AGRICULTURAL INCOME OF RS.1,24,725/-WHICH WAS NOT INCLUDED IN T HE INCOME SINCE AS PER THE COMPUTATION NO INCOME WAS TAXAB LE. THE AO OBSERVED THAT THE COMPUTATION OF INCOME FILED DID NOT MATC H WITH THE COMPUTATION OF INCOME WHICH WAS FILED ELECTRONICALLY. THE AO , THEREFORE, ASKED THE ASSESSEE TO PRODUCE BOOKS OF ACC OUNT, BANK STATEMENTS ETC., AND ALSO EXPLAIN THE REASONS REGARDING THE DISCREPANCIES. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AS SESSEE VIDE SUBMISSION DATED 19-11-2010 APART FROM OTHER THINGS SUBMITTED TH AT THE RETURN FILED BY THE ACCOUNTANT IS NOT CORRECT RETUR N AND IT IS NOT BASED ON THE BOOKS OF ACCOUNT. THE ASSESSEE PREPARED THE CORRECT STATEMENT OF TOTAL INCOME FROM THE AUDITED STATEMENT OF ACCOUNTS AND STATED THAT THERE IS PROFIT OF RS.4,81,350/-. THE ASS ESSEE ALSO FILED AN AFFIDAVIT AND REQUESTED THAT OWING TO LOSS OF AUDIT REPORT BY THE ACCOUNTANT THE MISTAKE CREPT IN THE E-RETURN FILED. THERE WAS NO MALAFIDE INTENTION TO CONCEAL OR TO FURNISH INACCURATE PARTI CULARS OF INCOME. IT WAS SUBMITTED THAT AS AGAINST LOSS OF RS.42,45 ,314/- THERE IS POSITIVE INCOME OF RS.4,81,350/-. 3 ITA NO.1394/PN/2013 5. AFTER CONSIDERING THE ARGUMENTS ADVANCED BY THE ASS ESSEE THE AO COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME OF RS.4,81,350/-. THEREAFTER, THE AO INITIATED PENALTY PROCEEDIN GS U/S.271(1)(C) OF THE I.T. ACT. REJECTING THE VARIOUS EXPLANAT IONS GIVEN BY THE ASSESSEE THE AO LEVIED PENALTY OF RS.14,08,281/- U /S.271(1)(C) OF THE I.T. ACT. IN APPEAL THE LD.CIT(A) CONFIRMED THE PEN ALTY LEVIED BY THE AO. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE ACKNOWLEDGEMENT OF THE RETURN FOR A.Y. 2008-09, COPY OF W HICH IS PLACED AT PAGES 1 TO 22 OF THE PAPER BOOK DREW THE AT TENTION OF THE BENCH TO THE COLUMN NO.1 ACCORDING TO WHICH THE GROSS T OTAL INCOME HAS BEEN DECLARED AT RS.51,35,110/-. HE SUBMITTED AFTER C LAIMING DEDUCTION UNDER CHAPTER VIA THE TOTAL INCOME AS PER T HE SAID RETURN IS SHOWN AT RS.50,35,110/-. AGAIN AS PER COLUMN NO.3 (A) TH E ASSESSEE HAS CLAIMED LOSS OF RS.42,45,314/-. REFERRING TO PA GE 43 OF THE PAPER BOOK (PAGE 1 OF THE ASSESSMENT ORDER) HE SU BMITTED THAT AS PER THE SAID RETURN THE LOSS AS PER E-RETURN FILED ON 25 -12-2008 IS RS.42,45,340/-. REFERRING TO PAGE 46 OF THE PAPER BOOK HE SUBMITTED THAT AO HAS COMPLETED THE ASSESSMENT DETERMINING TOTAL INCOME OF RS.4,81,350/-. REFERRING TO PAGE 12 OF THE PAPER BOOK, WHIC H IS PART OF THE RETURN OF INCOME, HE SUBMITTED THAT THE NET INCOME HAS BEEN SHOWN IN THE RETURN OF INCOME FILED WITH THE AO IS RS.8,00,70 2/-. THUS, THE TOTAL INCOME DECLARED AT RS.8,00,702/- IS MORE TH AN THE INCOME DETERMINED BY THE AO. HE SUBMITTED THAT THE ASS ESSEE IN THE INSTANT CASE HAS FILED BELATED RETURN OF INCOME FOR WHICH HE IS NOT 4 ITA NO.1394/PN/2013 ENTITLED TO SET OFF/CARRY FORWARD THE LOSS. IN ANY CASE S INCE THE RETURNED INCOME IS MORE THAN THE ASSESSED INCOME THE A O WAS NOT JUSTIFIED IN LEVYING PENALTY OF RS.14,08,281/- U/S.271(1)(C) OF THE I.T. ACT. 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAV ILY RELIED ON THE ORDER OF THE CIT(A). 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE AO IN THE INSTA NT CASE HAS COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCO ME AT RS.4,81,350/- AS AGAINST THE LOSS OF RS.42,45,340/- AS PER THE COMPUTATION OF INCOME FILED WITH THE RETURN OF INCOME FILED ELECTRONICALLY. WE FIND THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FILED A REVISED COMPUTATION OF INCOME ACCORDING TO WHICH THE CORRECT INCOME WAS RS.4,81,350/-. WE FIND THE AO LEVIED PENALTY OF RS.14,08,281/- U/S.271(1)(C) OF THE I.T. ACT ON THE GROUND THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS AND CONCEA LED HIS PARTICULARS OF INCOME. IT IS THE SUBMISSION OF THE LD. COUN SEL FOR THE ASSESSEE THAT AS PER THE RETURN OF INCOME THE ASSESS EE HAD SHOWN NET PROFIT OF RS.8,00,702/- WHICH IS MORE THAN THE ASSESSED INCOME. THERE WAS ONLY SOME ERROR IN THE COMPUTATION OF INCOME DUE TO THE MISTAKE OF THE ACCOUNTANT. HOWEVER, THE ARGUMENT NOW A DVANCED BY THE LD. COUNSEL FOR THE ASSESSEE THAT AS PER THE E-RET URN ITSELF THE ASSESSEE HAS DECLARED INCOME OF RS.8,00,702/- AND THE SA ME IS MORE THAN THE RETURNED INCOME AND THEREFORE THE PROVISIONS O F SECTION 271(1)(C) ARE NOT APPLICABLE TO THE ASSESSEE WERE NEVER TA KEN BEFORE THE AO OR THE CIT(A). THE AO OR THE CIT(A) HAS NEITHER SEEN THIS VITAL 5 ITA NO.1394/PN/2013 DISCREPANCY NOR DECIDED THE ISSUE FROM THIS ANGLE ALSO. I N VIEW OF THE ABOVE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER T O RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE TH E ISSUE IN THE LIGHT OF THE ARGUMENT ADVANCED BY THE ASSESSEE THAT TH E RETURNED INCOME IS MORE THAN THE ASSESSED INCOME AND THE MISTAKE WAS ONLY IN THE COMPUTATION STATEMENT. THE AO SHALL DECIDE THE ISS UE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05-10-2016. SD/- SD/- (VIKAS AWASTHY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; ' DATED : 5 TH OCTOBER, 2016. ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. THE CIT(A) - I, PUNE THE CIT- I, PUNE 5. $ ''( , ( , / DR, ITAT, A PUNE; 5 . + / GUARD FILE. / BY ORDER, // $ ' //TRUE COPY // -. ' ( / SR. PRIVATE SECRETARY ( , / ITAT, PUNE