SUKHDEV LINGAPPA ATKARI, PUNE V. ITO WD 26(2)(3), MUMBAI

ITA 1435/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8264 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 22-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: D Y PANDIT
• Keywords: Bonafide mistake; TDS
• Section: 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, E, MUMBAI BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 1435 TO 1437/MUM/2010 (ASSESSMENT YEARS 2002-03 TO 2004-05) MR.SUKHDEV LINGAPPA ATKARI FLAT NO.B/104, HERAMB, NEW BOMBAY OIL EXCH. SOC. PLOT NO.18C-SECTOR-13, NEW PANVEL-410206 PAN: ACHPA3904G . APPELLANT VS INCOME TAX OFFICER WARD 26(2)(3), ,MUMBAI .. RESPONDENT APPELLANT BY : SHRI D Y PANDIT RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER VIJAY PAL RAO,JM THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THREE DIFFERENT ORDERS OF THE CIT(A) DATED 6.03.200 9 ARISING FROM THE ORDER PASSED U/S 271(1)(C ) FOR THE ASSESS MENT YEARS2002-03 TO 2004-05. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THES E APPEALS, HOWEVER, THE ONLY ISSUE ARISES IN THESE APPEALS FOR OUR CONSIDERATION AND ADJUDICATION IS WHETHER IN TH E FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFI ED IN ITA NO. 1435 TO 1437/MUM/2010 (ASSESSMENT YEARS 2002-03 TO 2004-05) 2 CONFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1) (C) OF THE ACT. 3. FACTS LEADING TO THIS PENALTY ARE THAT THE ASSE SSEE IS AN EMPLOYEE OF BHARAT PETROLELUM CORPORATION LTD. AFTER SCRUTINY OF THE RETURN, THE AO OBSERVED THAT THE A SSESSEE HAD FILED THE RETURN OF INCOME AS PER TDS SALARY CE RTIFICATE IN FORM NO.16 AND HAD NOT DISCLOSED THE LEASE RENT REC EIVED DURING THE PREVIOUS YEARS. THE ASSESSEE, ON THE OT HER HAND, CLAIMED INTEREST PAID ON THE LOAN TAKEN FOR ACQUISI TION OF HOUSE PROPERTY TREATING THE RENTED (LEASE) PROPERTY AS SELF OCCUPIED PROPERTY AND CLAIMED REFUND. 3.1 THE AO CALLED DETAILS FORM THE BHARAT PETROLEUM CORPORATION LIMITED. FROM THE DETAILS RECEIVED THE AO OBSERVED THAT THE ASSESSEE HAS NOT SHOWN RECEIPT OF LEASE RENT AND MAINTENANCE CHARGES. THEREFORE, AO ISSUED NOTICE U/S 148 TO THE ASSESSEE CALLING UPON THE ASSESSEE T O SHOW CAUSE NOTICE AS TO WHY THIS RECEIPTS SHOULD NOT BE TREATED AS INCOME OF THE ASSESSEE AND NOT TO ADD IN THE TOTAL INCOME OF THE ASSESSEE. IN RESPONSE TO THE NOTICE, THE ASSES SEE HAS FILED RETURN. THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND WAS OF THE VIEW THAT THE ASSESSEE HAS CONCEALED THE INCOME AND SUPPRESSED THE MATERIAL FA CT. ITA NO. 1435 TO 1437/MUM/2010 (ASSESSMENT YEARS 2002-03 TO 2004-05) 3 3.2 THEREFORE, THE AO INVOKING THE PROVISIONS OF S ECTION 271(1)( C ) AND LEVIED THE PENALTY AT THE RATE OF 100% ON THE TAX SOUGHT TO BE EVADED. 4. ON APPEAL, THE CIT(A) CONFIRMED THE PENALTY LEVI ED BY THE AO. 5. WE HAVE HEARD THE LEARNED AR AND THE LEARNED DR AND CONSIDERED THE RELEVANT RECORD. THE LEARNED AR OF T HE ASSESSEE HAS SUBMITTED THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE IN RESPECT OF THE OTHER E MPLOYEES OF THE BHARAT PETROLEUM CORPORATION LIMITED, THE TRIBU NAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. HE H AS RELIED UPON THE VARIOUS DECISIONS OF THE TRIBUNAL WHEREIN THE PENALTY LEVIED U/S 271(1)( C ) HAS BEEN DELETED. FOR THE S AKE OF BREVITY, WE ARE REPRODUCING THE RELEVANT PORTION O F THE ORDER DATED 30.06.2010 IN THE CASE OF SMT. VERONICA J CORREIA V/S ITO 26(2)(1) IN ITA NO.5986, 5987 AND 59/MUM/2009 (AY 2002-2003, 2003-2004 AND 2004-2005: 3. AT THE TIME OF HEARING, LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE, RELIED UPON TH E FOLLOWING DECISIONS OF THE ITAT, MUMBAI BENCHES IN THE CASE OF OTHER EMPLOYEES O F BPCL, WHO WERE SIMILARLY SITUATED, WHEREIN PENALTY LEVIED BY THE AO WAS CANCELLED BY THE TRIBUNAL ON THE GROUND THAT NON-DISCLOSURE OF MAINTENANCE CHARGES WAS ON ACCOUNT OF A BONAFIDE MISTAKE AND HENCE PENAL ITA NO. 1435 TO 1437/MUM/2010 (ASSESSMENT YEARS 2002-03 TO 2004-05) 4 PROVISIONS UNDER SECTION 271(1)( C ) OF HE ACT ARE NOT APPLICABLE, (I) ORDER OF ITAT B BENCH IN THE CASE OF MR. MAKARAND C JOSHI VIDE ITA NO.3522/MUM/2008 DATED 17.9.2009; (II) ORDER OF ITAT D BENCH IN THE CASE OF SHRI RAVINDRA LAXMAN SATHE V/S ITO VIDE ITA NO.2828/MUM/2008 DATED 22.12.2009 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIES 5. HAVING REGARD TO THE RIVAL SUBMISSIONS, AND CONSISTENT WITH THE VIEW TAKEN BY THE ITAT, MUMBAI BENCHES UNDER IDENTICAL CIRCUMSTANCES, WE ARE OF TH E VIEW THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALT Y UNDER SECTION 271(1)( C ) OF THE ACT. BY RESPECTFU LLY FOLLOWING THE DECISIONS CITED (SUPRA) WE CANCEL TH E PENALTY LEVIED BY THE AO AND ALLOW THE APPEALS OF THE ASSESSEE 6. IN VIEW OF THE DECISIONS OF THE CO-ORDINATE BENC HES OF THIS TRIBUNAL AND TO MAINTAIN THE CONSISTENCY WITH THE ORDERS OF THIS TRIBUNAL, WE DELETE THE PENALTY LEVIED UND ER SECTION 271(1)( C ) OF THE ACT FOR ALL THE THREE ASSESSMEN T YEARS. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 MARC H.2011 SD S D (T.R.SOOD) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 11 TH MARCH 2011 SRL:3311 ITA NO. 1435 TO 1437/MUM/2010 (ASSESSMENT YEARS 2002-03 TO 2004-05) 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI