APARNA S. TODI, MUMBAI V. ACIT, CC--1, MUMBAI

ITA 1605/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3834 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, J UDICIAL MEMBER ITA NO .1605 /MUM/2015 (A.Y.: 2010 - 11 ) MRS. APARNA S. TODI, 141/151, MAKER TOWER A, CUFFE PARADE, MUMBAI 400 005 VS. THE ASST. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE - 1, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI 400 020 PAN:AAZPS 0433J APPELLANT .. RESPONDENT APPELLANT BY .. SHRI SHEKHAR GUPTA, AR RESPONDENT BY .. SHRI A. RAMACHANDRAN, DR DATE OF HEARING 27 - 06 - 2016 DATE OF PRONOUNCEMENT 10 - 08 - 20 16 O R D E R PER MAHAVIR SINGH , JM : THIS APPEAL BY THE ASSESSEE IS ARISING OU T OF THE ORDER OF THE CIT (A) - 6, MUMBAI PASSED IN APPEAL NO.CIT (A) - 36/AP.178/14 - 15 DATED 01 - 01 - 2015 . ASSESSMENT WAS FRAMED BY THE DCIT, CC - 1, MUMBAI FOR THE ASSESSMENT YEAR 2 010 - 11 VIDE HIS ORDER DATED 11 - 03 - 2013 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). THE PENALTY UNDER DISPUTE WAS LEVIED BY THE ACIT, CC - 1, MUMBAI U/S 271 (1) (C) OF THE ACT VIDE HIS ORDER DATED 30 - 09 - 2013. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF THE CIT (A) SUSTAINING THE PENALTY LEVIED BY THE AO U/S 271 (1) (C) OF THE ACT ON ACCOUNT OF FURNISHING OF PARTICULARS OF UNDISCLOSED INCOME OF MINOR CHILDREN S INCOME AND UNDISCLOSED PROFESSI ONAL RECEIPT S. 3 . BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED FROM THE TDS CERTIFICATES ISSUED BY UBI AND EXIM BANK IN FAVOUR OF THE ASSESSEES MINOR CHILDREN VIZ. MASTER SHREYAS S. TODI AND MISS SAUMYAA S. TODI, THE INCO ME IN RESPECT OF WHICH WAS NOT INCLUDED BY THE ASSESSEE OF THE FOLLOWING: - NAME BANK INTEREST (RS.) TDS (RS.) MISS SAUMYAA TODI 13, 91,954 1,40,086 MASTER SHREYAS TODI 1,79,026 18,159 15,70,980 1,58,245 ACCORDING TO THE AO, THE ASSESSEE HAS NOT INCLUDED THE MINOR CHILDRENS INCOME TO THE EXTENT OF RS.15,76,026/ - IN THE INCOME OF THE ASSESSEE AND ACCORDINGLY, ADDITION WAS MADE. SIMILARLY, THE AO NOTICED FROM THE RECONCILIATION OF TDS AS PER 26 AS AND THAT THE INCOME OFFERE D WITH THE RETURN OF INCOME. ACCORDING TO THE AO, THERE IS DISCREPANCY ITA NO. 1605 /MUM/20 1 5 2 AT RS.1,20,000/ - IN THE PROFESSIONAL RECEIPTS. ACCORDINGLY, THE AO ADDED THIS UNDISCLOSED PROFESSIONAL RECEIPTS TO THE EXTENT OF RS.1.20 LACS TO THE RETURNED INCOME OF THE ASSESSEE. ON BOTH THE COUNTS, THE AO INITIATED PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND ALSO FOR CONCEALMENT OF INCOME. THE ASSESSEE HAS NOT CHALLENGED THIS QUANTUM ADDITION AND ACCEPTED THE SAME AS IT IS. TH E AO INITIATED PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE ACT IN RESPECT TO BOTH THE ADDITIONS A ND LEVIED PENALTY @ 100% OF TAX EVADED ON THE INCOME AT RS.5,07,300/ - . AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT (A) WHO ALSO CONFIRMED THE ACTION OF THE AO. AGGRIEVED, NOW THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS OF THE CASE. I FIND FROM THE RECORDS THAT THE ASSESSEE HAS FILED EXPLANATION THAT THIS INTEREST OF MINOR CHI LDREN WAS NEITHER CLUBBED BY THE ASSESSEE IN HER HUSBANDS HAND NOR IN HER HAND DUE TO INADVERTENT ERROR AND FINALLY THE ASSESSEE FILED TDS CERTIFICATES AND DECLARED MINORS INCOME IN HER HAND BEFORE THE AO DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEED ING FOR TAX. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE NOW BEFORE ME, THE ASSESSEE HERSELF OFFERED THIS INCOME AND THERE WAS NO DETECTION BY THE DEPARTMENT. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE THIS WAS A VOLUNTARY DISCLOSURE AND THE A SSESSEE ALSO FILED TDS CERTIFICATES OF UBI AND EXIM BANK ISSUED IN THE NAME OF THE ASSESSEES MINOR CHILDREN VIZ. MASTER SHREYAS S. TODI AND MISS SAUMYAA S. TODI. ACCORDING TO THE LEARNED COUNSEL ONCE THIS IS EXPLAINED AND THE EXPLANATION OFFERED BY THE AS SESSEE HAS NOT BEEN HELD TO BE FALSE OR UNTRUE, THE PENALTY FOR CONCEALMENT CANNOT BE LEVIED. IN RESPECT TO UNDISCLOSED RECEIPTS IT WAS EXPLAINED THAT THE ASSESSEE HAS RECEIVED PRO FESSIONAL FEES FROM M/S. AJANTA OFFSET AND PACKAGING LTD. AMOUNTING TO RS.1. 20 LACS OF WHICH TDS WAS DEDUCTED BUT COULD NOT DISCLOSE IN THE RETURN OF INCOME DUE TO INADVERTENT MISTAKE. IT IS A FACT THAT THIS RECEIPT SUFFERED TDS AND NO CLAIM IN RESPECT TO TDS WAS ALSO MADE. ACCORDINGLY TO THE LEARNED COUNSEL THIS IS PURELY A MISTA KE, WHICH IS BONA FIDE, PENALTY CANNOT BE LEVIED ON THIS. BUT THE AO OR THE CIT (A) DID NOT BELIEVE THE EXPLANATION OF THE ASSESSEE ON BOTH THE COUNTS AND LEVIED PENALTY. I FIND FROM THE RECORDS THAT NONE OF THE AUTHORITIES BELOW HAS HELD THE EXPLANATION O F THE ASSESSEE AS FALSE OR REJECTED THE EXPLANATION. I FIND THAT THE EXPLANATION OF THE ASSESSEE IS BONA FIDE BECAUSE THIS INCOME LEFT DUE TO INADVERTENT MISTAKE AS THERE WAS NO INTENTION OF THE ASSESSEE TO CONCEAL THE INCOME. IN TERMS OF THE ABOVE, I DELE TE THE PENALTY AND ALLOW THE APPEAL OF THE ASSESSEE. ITA NO. 1605 /MUM/20 1 5 3 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 10 /08 / 201 6 . SD/ - ( MAHAVIR SINGH ) JUDICIAL MEMBER MUMBAI , DATED 10 / 0 8 / 201 6 LAKSHMIKANTA DEKA/SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI DATE INITIAL DICTATION PAD ATTACHED WITH THE DRAFT ORDER YES 1. DRAFT DICTATED ON 08 - 08 - 16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 09 - 08 - 16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT ( A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//