INCOME TAX OFFICER(IT)-3(3)(1), MUMBAI V. MR.BRUCE EDWARD NEAVE, MUMBAI

ITA 1406/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4860 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Salary income; Bonafide mistake; TDS
• Section: 271(1)(c)

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAMLAL NEGI ( J M) I.T.A. NO. 1406 /MUM/ 2018 (ASSESSMENT YEAR 20 13 - 14 ) ITO(IT) 3(3)(1) 1631, 16 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI - 400 021. V S . MR. BRU CE EDWARD NEAVE C/O. LEIGHTON INDIA CONTRACTORS P. LTD. 7/F, TOWER - 3 EQUINOX BUSINESS PARK OFF BANDRA KURLA COMPLEX LBS BARG, KURLA WEST MUMBAI - 400 070 PAN : APRN7925D ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI NIRAJ SHETH DEPARTMENT BY SHRI SAT ISH CHANDRA RAJORE DATE OF HEARING 18.03 . 201 9 DATE OF PRONOUNCEMENT 22 . 0 5 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : THIS APPEAL BY THE REVENUE AGAINST THE ORDER OF LEARNED CIT(A) DATED 4.12.2017 AND PERTAINS TO A.Y. 2013 - 14. 2. THE I SSUE RAIS ED IS THAT LE ARNED CIT(A) ERRED IN DELEING PENALTY LEVIED U/S. 271(1)(C) OF THE I.T. ACT AMOUNTING TO RS. 1,09,57,483. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER DURING THE SCRUTINY PROCEEDINGS NOTICED HUGE DISCREPANCIES IN RESPECT OF INCOM E RETURNED AND CLAIM OF REFUND. 4. ASSESSEE RESPONDED THAT THERE WAS SOME ERRO R IN PUNCHING THE DETAILS. F OLLOWING REPLY WAS GIVEN : - 'WITH REFERENCE TO THE ABOVE WE WOULD INFORM YOU THAT THROUGH AN OVERSIGHT WHILE FILING THE RETURNS IN ITR - V FOR THE F. Y 2012 - 13 AMOUNT MENTIONED UNDER THE INCOME CHARGEABLE UNDER THE HEAD 'SALARY' WAS SHOWN AS RS.50,86,073/ - 2 AND DEDUCTION UNDER CHAPTER VI - A WAS SHOWN AS RS.75,397/ - WHICH WAS MENTIONED WRONGLY DUE TO WHICH IT WAS SHOW ING A REFUND OF RS.1,12,73,450/ . WE HE REBY CHANGE THE COMPUTATION AND THE CORRECT FIGURES ARE : - INCOME CHARGEABLE UNDER THE HEAD 'SALARY' 4, 16, 11,01 7/ - DEDUCTION UNDER CHAPTER VIA 1,00,000/ - TOTAL TAX PAYABLE 1 ,26,46,653/ - TAXES PAID 1,26,46,653/ - TAX REFUND NIL ATTACHED REVISED TDS COMPUTATION ALONGWITH FORM 16 PART A, B AND 12BA FOR THE FY 2012 - 13 AND FORM 26AS GENERATED WHICH CLEARS THE ISSUE AS NIL TAXES L I ABLE AND NIL TAXES REFUND. WE APOLOGIZE FOR THE SAME AND REGRET FOR THE INCONVENIENCE CAUSED TO YOU.' ASSESSING OFFICER ACCEPTED THAT THE ABOVE FIGURES AND PENALTY WAS ALSO LEVIED ON THIS ACCOUNT . T HE ASSESSEE SUBMISSION WAS THAT IT WAS A HUMAN ERROR WITHOUT ANY MALAFIDE INTENTION WAS ACCEPTED BY THE LEARNED CIT(A) AND PENALTY WAS DELETED . 5. AGAINST THE ABOVE ORDE R REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT IN ASSESSMENT ORDER THE ASSESSING OFFICER HAS NOTICED THAT WHILE ASSESSEE HAD DECLARED TOTAL INCOME OF RS. 50,10,680/ - , IT WAS CLAIMING A REFUND OF R S. 1,02,73,450/ - . UPON INQUIRY IN THIS REGARD, ASSESSEE R EVISED THE FIGURES OF INCOME CHARGEABLE UNDER THE HEAD INCOME FROM SALARY OF RS. 4,16,11,017/ - AND TDS THEREON AMOUNTING TO RS. 1,26,46,653/ - . ASSESSEES CLAIM IS THAT ABOVE TWO FIGURES OF AMOUNT OF SALARY AND FIGURES OF TAX DEDUCTED AT SOURCE THEREUPON WAS ALREADY KNOWN TO THE DEPARTMENT IN AS MUCH AS THE EMPLOYER COMPANY M/S. LEIGHTON INDIA CONTRACTORS P. LTD. HAS DULY DEDUCTED TAX DEDUCTED AT SOURCE ON THE ENTIRE AMOUNT AND REPORTED THE SAME AGAINS T PAN OF 3 THE ASSESSEE. HENCE, IT IS CLAIM ED THAT THERE WAS NO MALAFIDE INTENTION AND IT WAS ONLY THE ERROR IN PUNCHING FIGURES. WE FIND CONSIDERABLE COGENCY IN THE ABOVE SUBMISSION S. T HE AMOUNT OF SALARY OF RS. 4,16,11,017/ - WAS ALREADY KNOWN TO THE DEPART MENT IN AS MUCH AS THE SAME WAS REFLECTED IN THE TAX DEDUCTED AT SOURCE BY THE EMPLOYER. IT CANNOT BE SAID THAT THERE WAS ANY INTENTION OF CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. THE ASSESSING OFFICER ALSO CANNOT FEIGN I GNORANCE ABOUT THE SALARY RECEIVED BY THE ASSESSEE AMOUNTING TO RS. 4,16,11,017/ - AGAINST WHICH TAX DEDUCTED AT SOURCE WAS TO BE ADJUSTED. HENCE, IN OUR CONSIDERED OPINION ACTION OF THE ASSESSEE IS NOT CO NTUMACIOUS SO AS TO WARRANT LEVY OF PENALTY U/S. 271 (1)(C) OF THE ACT. THIS VIEW IS SUPPORTED BY THE DECISION OF HON'BLE APEX COURT IN THE CASE OF HINDUSTAN STEEL VS. STATE OF ORISSA (83 ITR 26). FURTHER HON'BLE APEX COURT IN THE CASE OF PRICEWATER HOUSE COOPERS P. LTD. VS. CIT VIDE ORDER DATED 26.9.2012 HA S ALSO EXPOUNDED THAT ASSESSEE MUST NOT BE VISITED WITH RIGOURS OF PENALTY U/S 271(1)(C) OF THE ACT FOR BONAFIDE MISTAKE. 7. IN THE BACKGROUND OF THE ABOVE DISCUSSION AND PRECEDENT, WE UPHOLD THE ORDER OF LEARNED CIT(A) WHICH DELETE THE PENALTY LEVIED. 8. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED . ORDER HAS BE EN PRONOUNCED IN THE COURT ON 22 . 5 . 201 9 . SD/ - SD/ - (RAMLAL NEGI ) (SH A MIM YAHYA ) J U DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 22 / 5 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 4 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI