SHANTILAL JAVERCHAND JAIN, MUMBAI V. ITO 9(3)3, MUMBAI

ITA 1553/MUM/2012

• Counselvise Citation: 155319914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 12-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C SRINIVAS REDDY
• Assessee Lawyers: MAHESH O RAJORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 1553/MUM/2012 ASSESSMENT YEAR : 2008-09 SHRI SHANTILAL JAVERCHAND JAIN VARSHA, 13 ADARSH SOCIETY RAMCHANDRA LANE EXTN. MALAD(W) MUMBAI-400 064. PAN NO.AAEPJ 8434 B VS. INCOME TAX OFFICER - 9(3) - 3 AAYAKAR BHAVAN MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JITENDRA JAIN AND SHRI MAHESH O. RAJORA REVENUE BY : SHRI C. SR INIVAS REDD Y DATE OF HEARING : 12/09/2013 DATE OF PRONOUNCEMENT : 17 / 0 9 /2013 O R D E R PER B. RAMAKOTAIAH, AM: THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-20, MUMBAI CONFIRMING THE PENALTY U/S. 271(1)(C) OF RS. 59,895/-. 2. BRIEFLY STATED, ASSESSEE AN INDIVIDUAL HAS A PRO PRIETARY BUSINESS CONCERN M/S. VARSHA EXPORT WHICH DID BUSINESS IN AS SESSMENT YEAR 2005-06. DURING THE YEAR ASSESSEE HAD CERTAIN INCOM E U/S 41(1) OF RS. 1,520/- AND ALSO PAID EXCISE DUTY OF RS.1,60,984/-, PROPERTY AND OTHER CHARGES TOTALLING TO RS.1,77,182/- WHICH WERE CLAIM ED AS EXPENDITURE. THE NET LOSS IN P&L A/C. WAS AT RS.1,76,212/-. IT WAS EXPLAINED BY ASSESSEE THAT HE HAD TO EXPORT SYNTHETIC FIBRE IN A SSESSMENT YEAR 2005- 06 AND PURCHASED NYLON FROM M/S. GUJARAT STATE FERT ILIZERS & CHEMICALS ITA NO.1553/M/12 A.Y.08-09 2 LTD. AGAINST EXPORT ORDER WHEREIN EXCISE DUTY WAS N OT CHARGED. DEPARTMENT OBTAINED BOND AT THAT TIME AND DUE TO S OME TECHNICAL REASONS, DEPARTMENT HAS ASKED TO MAKE PAYMENT OF EX CISE DUTY WITH INTEREST WHICH WAS PAID. THIS AMOUNT WAS CLAIMED AN EXPENDITURE IN P&L A/C. THE PROPERTY TAX IS ON WAREHOUSE/ GODOWN O F THE PROPRIETARY CONCERN. AO DISALLOWED THE LOSS CLAIMED ON THE REAS ON THAT BUSINESS DOES NOT EXIST IN THIS YEAR. AO INITIATED PENALTY U /S 271(1)(C) AND LEVIED PENALTY OF RS.59,895/- FOR FURNISHING INACCURATE PA RTICULARS. LD.CIT(A) CONFIRMED THE SAME. 3. AFTER HEARING RIVAL CONTENTIONS, WE ARE OF THE O PINION THAT THE FACTS OF THE CASE DOES NOT CALL FOR PENALTY U/S. 271(1)(C ). THERE IS NO DISPUTE WITH REFERENCE TO THE FACT THAT ASSESSEE WAS IN THE BUSINESS OF EXPORT. THERE IS ALSO NO DISPUTE WITH REFERENCE TO THE PAYM ENTS MADE. WHILE ACCEPTING THE INCOME U/S. 41(1) OF THE PROPRIETARY BUSINESS CONCERN, AO DISALLOWED NET LOSS CLAIMED. THIS IS A BONA FIDE CL AIM OF THE ASSESSEE. MERE DISALLOWANCE OF BONAFIDE CLAIMS DOES NOT LEAD TO PENALTY. THE PRINCIPLE LAID DOWN THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS 322 ITR 158 WITH REFERENCE TO BONA FIDE CLAIMS AND PRINCIPLES OF FURNISHING INACCURATE PARTICULARS APP LY TO THE FACT OF THE CASE. THEREFORE, ALLOWING THE GROUND OF ASSESSEE, T HE PENALTY U/S. 271(1)(C) IS HEREBY CANCELLED. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2013. SD/- SD/- (SANJAY GARG ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 17/09/2013. JV. ITA NO.1553/M/12 A.Y.08-09 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.