MRUDULA MEHTA, MUMBAI V. ITO RG 14(1)(3), MUMBAI

ITA 1534/MUM/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79541 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBER DAS
• Assessee Lawyers: ANIL J SATHE
• Keywords: Depreciation; Wrong claim; Revised return; Bonafide mistake
• Section: 143(3); 139(5); 27; 139

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI H.L. KARWA, HONBLE PRESIDENT AND P.M . JAGTAP, AM .. , .. , ./ I.T.A. NO.1534 /MUM/2014 ( / ASSESSMENT YEAR : 2009-2010 MRUDULA MEHTA, 609-B, NIRANJAN, MARINE DRIVE, MUMBAI 400 021. / VS. INCOME TAX OFFICER RANGE 14(1)(3), MUMBAI. ./ PAN : AFPPM3953E ( ! / APPELLANT ) .. ( '#! / RESPONDENT ) A PPELLANT BY SHRI ANIL J. SATHE R E SPONDENT BY : SHRI PITAMBER DAS ' ( / DATE OF HEARING : 15-07-2014 ' ( / DATE OF PRONOUNCEMENT : 31-7-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD.CIT(A) 25, MUMBAI DATED 9-12-2013 WHEREBY HE CON FIRMED THE PENALTY OF RS. 10,60,122/- IMPOSED BY THE A.O. U/S 271(1)(C) O F THE INCOME TAX ACT, 1961. 2. THE RELEVANT FACTS OF THE CASE GIVING RISE TO TH IS APPEAL ARE AS FOLLOWS. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL W HO DERIVES INCOME FROM CAPITAL GAINS, INCOME FROM OTHER SOURCES AND AGRICU LTURAL INCOME. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS ORIG INALLY FILED BY HER ON 31-7-2009 DECLARING TOTAL INCOME OF RS. 2,08,283/-. IN THE SAID RETURN, ITA 1534/M/14 2 INCOME RECEIVED FROM PROPERTY IE. UNIT NO. 001, RAH EJA TITANIUM GIVEN UNDER LEAVE AND LICENSE AGREEMENT ALONG WITH THE USE OF A MENITIES AND COMMON AREA WAS DECLARED BY THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES AND AFTER CLAIMING, INTER ALIA, DEDUCTION ON ACCOUNT OF DEPRECIATION AMOUNTING TO RS. 50.98 LACS, NET LOSS OF RS. 30.95 LACS WAS SET OFF BY THE ASSESSEE AGAINST OTHER INCOME. THE RETURN ORIGINAL LY FILED BY THE ASSESSEE WAS INITIALLY PROCESSED BY THE A.O. U/S 143(1) OF T HE ACT. THEREAFTER, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTIC E U/S 143(2) OF THE ACT WAS ISSUED BY THE A.O. TO THE ASSESSEE ON 19-8-2010. ON 27-8-2010, THE ASSESSEE FILED A REVISED RETURN DECLARING TOTAL INCOME OF RS . 42,76,260/-. IN THE SAID RETURN, THE INCOME RECEIVED BY THE ASSESSEE FROM UN IT NO. 001 AT RAHEJA TITANIUM UNDER THE LEAVE AND LICENSE AGREEMENT WAS SHOWN BY THE ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND CON SEQUENTLY THE CLAIM FOR DEPRECIATION WAS WITHDRAWN. THE REVISED RETURN FILE D BY THE ASSESSEE, HOWEVER, WAS NOT ACCEPTED BY THE A.O. AS VOLUNTARY SINCE THE SAME, ACCORDING TO HIM WAS FILED ONLY AFTER ISSUE OF NOTICE U/S 143 (2) OF THE ACT. HE HELD THAT THE BENEFIT OF SECTION 139(5) OF THE ACT, THEREFORE , COULD NOT BE ALLOWED TO THE ASSESSEE. HE, HOWEVER, COMPLETED THE ASSESSMENT U/ S 143(3)(II) OF THE ACT VIDE ORDER DATED 31-12-2011 ON A TOTAL INCOME OF RS . 42,76,260/- AS DECLARED BY THE ASSESSEE IN THE REVISED RETURN. 3. THEREAFTER, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED BY THE A.O. AND IN RESPONSE TO THE SHOW CAUSE NOTIC E ISSUED BY THE A.O., IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT LEGAL OPINION WAS SOUGHT BY HER IN RESPECT OF HEAD OF INCOME UNDER WHICH THE INCOME FROM PROPERTY AT RAHEJA TITANIUM WAS LIABLE TO BE TAXED AND SUCH LEGAL OPIN ION WAS RECEIVED BY THE ASSESSEE ONLY ON 30 TH JULY, 2010. IT WAS ALSO SUBMITTED THAT THERE WAS N O ATTEMPT MADE BY THE ASSESSEE TO CONCEAL THE PARTICU LARS OF HER INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME AS THE SOURCE WAS DULY DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME ALSO AND ALL THE ITA 1534/M/14 3 PARTICULARS RELEVANT THERETO WERE ALSO FULLY AND TR ULY FURNISHED BY THE ASSESSEE. THIS EXPLANATION OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE A.O. ACCORDING TO HIM, THE REVISED RETURN WAS FILE D BY THE ASSESSEE ONLY AFTER RECEIPT OF NOTICE U/S 143(2) OF THE ACT AND HAD THE CASE OF THE ASSESSEE NOT BEEN SELECTED FOR SCRUTINY, THE ASSESSEE WOULD NOT HAVE FILED THE REVISED RETURN AND THE EVASION OF TAX WOULD HAVE GONE UN-NO TICED. HE HELD THAT THE REVISED RETURN FILED BY THE ASSESSEE THEREFORE WAS NOT VOLUNTARY AND THE SAME, IN ANY CASE, WAS NON-EST AS IT WAS FILED AFTER PROC ESSING THE RETURN U/S 143(1) OF THE ACT WHICH AMOUNTED TO ASSESSMENT. HE THEREF ORE HELD THE ASSESSEE GUILTY OF FURNISHING INACCURATE PARTICULARS OF HER INCOME AND IMPOSED A PENALTY OF RS. 10,60,122/- U/S 271(1)(C) OF THE ACT . 4. THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT WAS CHALLENGED BY THE ASSESSEE IN AN APPEAL FILED BEFORE THE LD. C IT(A) AND THE FOLLOWING SUBMISSIONS WERE MADE ON BEHALF OF THE ASSESSEE BEF ORE THE LD. CIT(A) IN SUPPORT OF HER CASE THAT THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT WAS NOT SUSTAINABLE. SIR, YOUR APPELLANT HAS SUBMIT THE ABOVE APPEALS B EFORE YOUR HONOUR AND SUBMIT THE GROUNDS OF APPEAL AND STATEMENT OF F ACTS IN DETAILS. THE ONLY GROUNDS OF APPEAL LEARNED ITO HAS LEVIED T HE PENALTY U/S 271 (1) (C) WITHOUT CONSIDERING THE FACTS THAT YOUR APP ELLANT HAS FILED THE REVISED RETURN U/S 139(5) VOLUNTARILY AND DECLARE T HE HOUSE PROPERTY INCOME BY REVISING THE ORIGINAL RETURN WHICH WAS FI LED IN TIME ON 31/07/2009 FOR THE A.Y. 2009-10. THE FACT OF CASE WAS MENTIONED IN THE STATEMENT OF FACTS THAT THE APPELLANT PURCHASED THE PROPERTY RAHEJA TITANIUM, U NIT NO. 001 AND WAS GIVEN UNDER LEAVE AND LICENCE AGREEMENT ALONG W ITH THE USE OF AMENITIES AND COMMON AREA. SINCE THE USE OF SUCH AMENITIES COULD NOT BE GIVEN WITHOUT THE USE OF THE PREMISES, THE APPELLANT TREATED THE ENTIRE INCO ME AS INCOME FROM OTHER SOURCES, RELYING ON DECISIONS OF THE HIGH COU RTS AND THE SUPREME COURT. ITA 1534/M/14 4 HOWEVER THEREAFTER, THE APPELLANT WAS ADVISED THAT TREATING SUCH INCOME AS INCOME FROM OTHER SOURCES IS NOT FREE FRO M DOUBT AND CAN BE CHALLENGED IN THE ASSESSMENT PROCEEDINGS. TO AVOID LITIGATION, THE APPELLANT REVISED THE RETU RN ON HER OWN ACCORD WITHOUT ANY INDICATION FROM ASSESSING OFFICER THAT HE WOULD LIKE TO TREAT THIS AS INCOME HOUSE PROPERTY. YOUR HONOUR, YOUR APPELLANT HAS FILED THE ORIGINAL RETURN IN TIME ON 31/07/2009 AND REVISED THE RETURN BEFORE RECEIVING ANY NOTICE / DETAIL QUESTIONER FROM THE DEPARTMENT ON 27/08/2010 IS VAL ID RETURN AS PER THE SEC 139 (5), WHICH SAY THAT F ANY PERSON, HAVIN G FURNISHING A RETURN UNDER SUB SECTION (1), OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUBSECTION (1) OF SECTION 142, DISCOVERS ANY OMISSI ON OR ANY WRONG STATEMENT THERE IN, HE MAY FURNISH A REVISE RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF(HE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. YOUR HONOUR, YOUR APPELLANT HAS REVISED HER RETURN ON HER OWN VOLUNTARILY ON 27/08/2010 AND PAID THE TAXES, WHATE VER APPLICABLE FOR PEACE OF HER MIND WITH THE ADVICE OF CA AND DECLARE THE INCOME ON HER OWN BY CHANGE OF THE HEAD OF INCOME, WHICH DECLARE EARLIER AND MOREOVER THE LEARNED OFFICER HAS PASSED THE ORDER O N RECEIVED RETURN FILED BY YOUR APPELLANT, WITHOUT ANY ADDITION, ACCE PT THE SAME INCOME. THEREFORE THE LEVY OF PENALTY U/S 271(1) (C) WITHOU T CONSIDERING THE FACTS IS NOT CORRECT SHOULD BE DELETED. SIR, THE PENALTY UNDER SECTION 271(1)(C) I MAY BE L EVIED IF ANY PERSON HAS (A) CONCEALED THE PARTICULARS OF HIS INCOME OR (B,) FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE EXPRESSIO NS HAS NON-CLEARED THE PARTICULARS OF INCOME AND HAS FURNISHED IN- ACC URATE PARTICULARS OF INCOME HAVE NOT BEEN DEFINED IN SECTION 271 (1) (C) OR ELSEWHERE IN THE ACT. ACCORDINGLY THE WORD, CONCEAL, MEANS TO HIDE, TO WILLFUL, TO WITHHOLD KNOWLEDGE, CONCEALMENT IMPLIES SOME DELIBE RATE ACT ON THE PART OF THE ASSESSEE IN WITHHOLDING THE TRUE FACTS FROM THE AUTHORITIES AS HELD IN CIT VS K R. CHINNI KRISHANA CHETTY (2000 ) 246 ITR 121 (MAD.). SIR, THE VERY FACTS HAS BEEN EXPLAINED TO THE LEARN ED ITO AND TWO SUBMISSIONS WERE MADE BEFORE THE ITO IS ENCLOSED FO R YOUR CONSIDERATION. SIR, AFTER FILING THE REVISED RETURN, WE HAVE RECEI VED THE REFUND ORDER ON THE BASIS OF ORIGINAL RETURN FILED TO THE DEPARTMEN T WHICH SIMPLY WE DELLID AND WRITE THE LETTER TO CONCERN OFFICER AS W ELL AS BANKERS FOR CANCELLATION OF SAID CHEQUE. SIR, IN THE ASSESSMENT ORDER, THE LEARNED ITO HAS R ELIANCE ON ALL THE CASES, WHERE THE INACCURATE DATA HAS FURNISHED DELI BERATELY TO HIDE THE ITA 1534/M/14 5 TAXES, WHERE IN ONE CASE, APPELLANT HAS FILED THE R EVISED RETURN ON HER OWN, WITH IN TIME ALLOWED U/S 139 (5) CHANGE THE HE AD OF INCOME ONLY. THE ORIGINAL PARTICULARS WAS ALREADY FILED IN THE O RIGINAL RETURN BUT DUE TO SOME DOUBT ABOUT THE HEAD OF INCOME, IN WHICH IT WILL ASSESSEE, YOUR APPELLANT HAS TAKEN THE ADVISE FROM HER CA AND ON S UO MOTO REVISE INCOME FROM ONE HEAD OF THE INCOME TO OTHER HEAD OF THE INCOME. THE LEARNED OFFICER HAS MENTIONED THAT IF THE NOTICE W AS NOT ISSUE TO THE ASSESSEE ESCAPE THE INCOME BUT THE IS NOT IN OUR CA SE. YOUR APPELLANT HAS FILED THE RETURN BEFORE THE LEARNED OFFICER GIV E ANY QUESTIONER SUBMIT THE RETURN AND THE SAME SYSTEM HAS FOLLOWED IN THE NEXT YEARS RETURN FILED TO THE DEPARTMENT FOR A Y 2010-11 WHIC H WAS FILED ON 31/07/2010 BEFORE THE NOTICE TWO WERE NOT ISSUED FO R THIS YEAR. IT WAS ALSO HELD BY INCOME TAX APPELLATE TRIBUNAL A BENCH OF AHMEDABAD IN THE CASE OF JAYSUKH M PARMAR VS ACIT, VALSAD CIRCLE THAT WHERE ASSESSEE HAS FILED REVISED RETURN BEFORE THE DETAILS QUESTIONNAIRES BEING GIVEN TO THE ASSESSEE THEN THE PENALTY U/S 271(1)(C) CANNOT BE LEVIED. 5. AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. C IT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE INTIMATION U/S 143(1) OF T HE ACT COULD NOT BE TREATED AS AN ORDER OF ASSESSMENT AND THE REVISED RETURN FI LED BY THE ASSESSEE THEREFORE COULD NOT BE CONSIDERED AS NON-EST. HE, H OWEVER, HELD THAT THE REVISED RETURN FILED BY THE ASSESSEE WAS NOT VOLUNT ARY AS THE SAME WAS FILED ONLY AFTER THE RECEIPT OF STATUTORY NOTICE U/S 143( 2) OF THE ACT. HE HELD THAT WRONG CLAIM THUS WAS MADE BY THE ASSESSEE IN THE OR IGINAL RETURN BY DECLARING THE INCOME RECEIVED UNDER LEAVE AND LICEN CE AGREEMENT UNDER THE HEAD INCOME FROM OTHER SOURCES AND THIS WRONG CLA IM WAS GIVEN UP BY FILING THE REVISED RETURN ONLY AFTER THE ASSESSEE CAME TO KNOW , ON RECEIPT OF NOTICE U/S 143(2) OF THE ACT, THAT THIS WRONG CLAIM WAS GO ING TO BE DETECTED IN THE SCRUTINY ASSESSMENT. HE HELD THAT THE ASSESSEE THUS WAS GUILTY OF FURNISHING INACCURATE PARTICULARS OF HER INCOME IN THE ORIGINA L RETURN AND SINCE THE REVISED RETURN FILED BY THE ASSESSEE CORRECTING THE MISTAKE WAS NOT VOLUNTARY, IT WAS A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C) O F THE ACT. ACCORDINGLY, THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE AC T WAS CONFIRMED BY THE LD. ITA 1534/M/14 6 CIT(A). AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A BONAFIDE MISTAKE COMMITTED BY THE ASSESSEE IN OFFERING THE I NCOME RECEIVED UNDER THE LEAVE AND LICENCE AGREEMENT OF THE PROPERTY OWNED B Y HER UNDER THE HEAD INCOME FROM OTHER SOURCES AND THIS BONAFIDE MISTA KE WAS CORRECTED BY THE ASSESSEE BY FILING A REVISED RETURN. HE SUBMITTED T HAT THIS ISSUE WAS ALSO INVOLVED IN ASSESSEES CASE FOR A.Y. 2010-11 AND AF TER GETTING THE LEGAL OPINION, SIMILAR INCOME WAS OFFERED BY THE ASSESSEE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN THE RETURN OF INCOM E FILED FOR A.Y. 2010-11 ON 31-7-2010. HE CONTENDED THAT THE RETURN OF INCOME FOR A.Y. 2010-11 THUS WAS FILED BY THE ASSESSEE BEFORE THE RECEIPT OF NOT ICE U/S 143(2) OF THE ACT FOR THE YEAR UNDER CONSIDERATION I.E 2009-10 WHICH CLEA RLY SHOWS THE BONAFIDE OF THE ASSESSEE TO DECLARE THE INCOME UNDER THE CORREC T HEAD IN ACCORDANCE WITH LAW. HE SUBMITTED THAT THE RETURN FOR A.Y. 2009-10 WAS FILED BY THE ASSESSEE AFTER THE DATE OF RECEIPT OF NOTICE U/S 143(3) OF T HE ACT BUT THERE WAS NO SPECIFIC INFORMATION CALLED FOR BY THE A.O. AS PER THE NOTICE U/S 143(2) OF THE ACT ON THE ISSUE OF HEAD OF INCOME UNDER WHICH THE INCOME IN QUESTION WAS CHARGEABLE TO TAX. HE CONTENDED THAT THE REVISED R ETURN THUS WAS FILED BY THE ASSESSEE VOLUNTARILY TO CORRECT THE BONAFIDE MISTAK E COMMITTED IN THE ORIGINAL RETURN AND IT IS NOT A FIT CASE TO IMPOSE PENALTY U /S 271(1)(C) OF THE ACT ESPECIALLY WHEN THE REVISED RETURN VOLUNTARILY FILE D BY THE ASSESSEE WAS ACCEPTED BY THE A.O. 7. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT IF AT ALL THERE WAS A BONAFIDE MISTAKE COMMITTED BY THE ASSESSEE IN DECLA RING THE INCOME RECEIVED UNDER THE LEAVE AND LICENCE AGREEMENT OF HER PROPER TY, THERE WAS NO REASON FOR HER TO FILE THE REVISED RETURN ONLY AFTER RECEI PT OF NOTICE U/S 143(2) OF THE ACT. HE SUBMITTED THAT ALTHOUGH THE ASSESSEE HAD F ILED HER RETURN OF INCOME ITA 1534/M/14 7 FOR A.Y. 2010-11 ON 31-7-2010 DECLARING SIMILAR INC OME UNDER THE HEAD INCOME FROM HOUSE PROPERTY, SHE STILL KEPT WAITIN G TO FILE THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION AND FINALLY FILED THE REVISED RETURN ONLY AFTER RECEIPT OF NOTICE U/S 143(2) OF THE ACT. HE CONTENDED THAT THE REVISED RETURN FILED BY THE ASSESSEE THUS CANNOT BE TREATED AS VOLUNTARY ONE AS RIGHTLY HELD BY THE AUTHORITIES BELOW. HE ALSO CONTENDED THAT THE ISSUE RELATING TO THE HEAD OF INCOME UNDER WHICH THE INCO ME IN QUESTION IS CHARGEABLE TO TAX WAS WELL SETTLED BY THE HONBLE S UPREME COURT IN THE CASE OF SHAMBHU INVESTMENT, 263 ITR 147 (SC) AND THE DEC LARATION OF SUCH INCOME BY THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES THUS CLEARLY AMOUNTED TO FURNISHING OF INACCURATE PARTIC ULARS OF HER INCOME BY THE ASSESSEE. HE CONTENDED THAT THE ASSESSEE BY FILING THE REVISED RETURN ACTUALLY ADMITTED THE FACT OF FURNISHING OF INACCURATE PARTI CULARS OF INCOME BY HER AND IT IS THEREFORE A FIT CASE TO IMPOSE PENALTY U/S 27 1(1)(C) OF THE ACT. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. IT IS OBSERVED THAT ALT HOUGH THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS MADE BY THE A.O. O N THE TOTAL INCOME AS DECLARED BY THE ASSESSEE IN THE REVISED RETURN, THE SAID REVISED RETURN WAS TREATED BY HIM AS NON-EST IN THE EYE OF LAW ON THE GROUND THAT THE SAME WAS FILED BY THE ASSESSEE AFTER ISSUE OF INTIMATION U/S 143(1) OF THE ACT WHICH, ACCORDING TO THE A.O., WAS THE ORDER OF ASSESSMENT. THE LD. CIT(A), HOWEVER, ACCEPTED THE CONTENTION RAISED BY THE ASSESSEE ON T HIS ISSUE THAT THE INTIMATION U/S 143(1) OF THE ACT COULD NOT BE TREAT ED AS AN ORDER OF ASSESSMENT AND THEREFORE THE REVISED RETURN FILED B Y THE ASSESSEE COULD NOT BE TREATED AS NON-EST IN THE EYE OF LAW. THERE IS NOT HING BROUGHT ON RECORD TO SHOW THAT THIS FINDING RECORDED BY THE LD. CIT(A) H AS BEEN CHALLENGED BY THE REVENUE BY FILING AN APPEAL BEFORE THE TRIBUNAL AND THE SAME THUS HAS BECOME FINAL. THE ONLY ISSUE THAT NOW SURVIVES IS WHETHER THE REVISED RETURN FILED BY THE ASSESSEE CAN BE SAID TO BE FILED BY TH E ASSESSEE VOLUNTARILY TO ITA 1534/M/14 8 CORRECT THE MISTAKE COMMITTED IN THE ORIGINAL RETUR N BY DECLARING INCOME RECEIVED FROM PROPERTY UNDER THE LEAVE AND LICENCE AGREEMENT AS INCOME FROM OTHER SOURCES. AS HELD BY THE A.O. AND THE LD. CIT (A), THE REVISED RETURN WAS NOT FILED BY THE ASSESSEE VOLUNTARILY AS THE SAME W AS FILED ONLY AFTER THE RECEIPT OF NOTICE U/S 143 (2) OF THE ACT. IT IS, HO WEVER, PERTINENT TO NOTE IN THIS REGARD THAT THE SIMILAR INCOME WAS EARNED BY THE AS SESSEE EVEN IN THE IMMEDIATELY SUCCEEDING YEAR I.E A.Y. 2010-11 AND IN THE RETURN OF INCOME FILED FOR THAT YEAR ON 31-7-2010 I.E. BEFORE THE IS SUE OF NOTICE U/S 143(2) OF THE ACT FOR THE YEAR UNDER CONSIDERATION, THE SAME WAS OFFERED TO TAX BY THE ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPERTY . IT CLEARLY SHOWS THAT THE INTENTION OF THE ASSESSEE WAS TO OFFER THE RELE VANT INCOME UNDER CORRECT HEAD AND THAT TOO EVEN BEFORE THE RECEIPT OF NOTICE U/S 143(2) OF THE ACT FOR THE EARLIER YEAR. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED OUR ATTENTION TO THE NOTICE ISSUED U/S 143(2) OF THE AC T ON 19-8-2010 TO SHOW THAT THERE WAS NO QUERY OR ANY CLARIFICATION OR INFORMAT ION SOUGHT BY THE A.O. AS REGARDS THE HEAD OF INCOME UNDER WHICH THE AMOUNT I N QUESTION WAS CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE. HA VING REGARD TO ALL THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE REVI SED RETURN WAS FILED BY THE ASSESSEE VOLUNTARILY TO CORRECT THE MISTAKE COMMITT ED BY HER IN THE ORIGINAL RETURN AND TO OFFER THE INCOME IN QUESTION UNDER TH E CORRECT HEAD. 9. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A COPY OF COMPUTATION OF TOTAL INCOME FILED BY THE ASSESSEE A LONG WITH THE ORIGINAL RETURN OF INCOME AND A PERUSAL OF THE SAME SHOWS TH AT THE INCOME IN QUESTION WAS DECLARED BY THE ASSESSEE UNDER THE HEA D INCOME FROM OTHER SOURCES CLEARLY STATING THAT THE SAME WAS INCOME F ROM LETTING OUT OF UNIT 001 AT RAHEJA PLATINUM AND DEDUCTION FROM THE SAME WAS CLAIMED, INTER ALIA, ON ACCOUNT OF DEPRECIATION. ALL THE PARTICULARS RELAT ING TO THE INCOME IN QUESTION THUS WERE TRULY AND FULLY FURNISHED BY THE ASSESSEE WHILE DECLARING THE SAID INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES A ND THE ASSESSEE, IN OUR ITA 1534/M/14 9 OPINION, CANNOT BE HELD GUILTY OF FURNISHING INACCU RATE PARTICULARS OF HER INCOME SO AS TO ATTRACT PENALTY U/S 271(1)(C) OF TH E ACT AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD., [2010) 322 ITR 158 (SC). AS SUCH CONSIDERING ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C ) OF THE ACT AND CANCELING THE SAME, WE ALLOW THIS APPEAL FILED BY THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2014. ' . / 0 31-7-2014 ' SD/- SD/- (H.L. KARWA) (P.M. JAGTAP ) /PRESIDENT ACCOUNTANT MEMBER MUMBAI ; 0 DATED 31=07=2014 [ .B../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT. 3. C () / THE CIT(A) 25 -, MUMBAI 4. C / CIT - 14, MUMBAI 5. F 'BBH , ( H , / DR, ITAT, MUMBAI E BENCH 6. / GUARD FILE. / BY ORDER, #F 'B //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI