NANA BUDHAPA NIKAM, PUNE V. ITO 26(2)(1), MUMBAI

ITA 1709/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8938 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Assessee Lawyers: D PANDIT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA. NO. 1709/MUM/2010 ASSESSMENT YEAR 2003-2004 NANA BUDHAPA NIKAM THANE 400 606 PAN AACPN2827L VS. ITO, WARD 26(2)(1) MUMBAI - 002 (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI D. PANDIT FOR RESPONDENT : SHRI HARI GOVIND SINGH (DR) ORDER PER D. MANMOHAN, V.P. 1. PENALTY OF RS.43,654/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) OF THE ACT, HAVING BEEN C ONFIRMED BY THE LEARNED CIT(A), ASSESSEE IS IN APPEAL BEFORE US. 2. FACTS IN SHORT ARE THAT THE ASSESSEE IS A SALAR IED EMPLOYEE OF BPCL. DURING THE COURSE OF ASSESSMENT PROCEEDING S THE ASSESSING OFFICER NOTICED THAT MOST OF THE EMPLOYEES OF BPCL, INCLUDING THIS ASSESSEE, HAD FILED RETURN OF INCOME AS PER TDS SAL ARY CERTIFICATES AND HAD NOT DISCLOSED LEASE RENT AND MAINTENANCE CHARGE S RECEIVED DURING THE RELEVANT ASSESSMENT YEAR BUT OFFERED TO TAX AFT ER DETECTION BY DEPARTMENT. CONSEQUENT TO THE ASSESSMENT MADE ON SU CH REASONS, PENALTY WAS LEVIED UNDER SECTION 271 (1) (C) OF THE ACT. 3. AT THE TIME OF HEARING, LEARNED COUNSEL, APPEAR ING ON BEHALF OF THE ASSESSEE, FILED BEFORE US COPIES OF T HE FOLLOWING ORDERS OF THE ITAT IN SUPPORT OF ITS CONTENTION THAT IT IS NO T A FIT CASE FOR LEVY OF PENALTY. (I) ITA. NOS. 5879/MUM/2009 ETC., DATED 27-8-2010 MRS. MANGHAL GAONKAR, THANE (W)-400 601. 2 (II) ITA. NO. 2828/M/2008 DATED 22-12-2009 SHRI RAVINDRA LAXMAN SATHE, MUMBAI. (III) ITA. NOS. 5986, 5987 & 5988/M/2009 DATED 30-6-2010 SMT. VERONICA J. CORREIA, MUMBAI. 4. ON THE OTHER HAND, LEARNED DR RELIED UPON THE O RDER PASSED BY THE LEARNED CIT(A). 5. HAVING REGARD TO THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY, SINC E IDENTICAL EXPLANATION OF OTHER EMPLOYEES OF BPCL WAS FOUND TO BE VALID BY IT AT, MUMBAI BENCHES AND NO DEPARTURE NEEDS TO BE MADE IN THE CO NCLUSION IN THIS CASE ALSO. WE, THEREFORE, SET ASIDE THE PENALTY LEV IED BY THE ASSESSING OFFICER AND ALLOW THE APPEAL FILED BY THE ASSESSEE. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 17-1- 2011. SD/- SD/- (PRAMOD KUMAR) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 17 TH JANUARY, 2011 VBP/- COPY TO 1. NANA BUDHAPA NIKAM, FLAT NO.C.-3/403, VEDANT COMPLE X, VARTAK NAGAR, POKHRAN ROAD NO.2, THANE-400 606. PAN AACPN2827L, C/O. MR. D.Y. PANDIT, ADV. 118 7/10, KRUPA, SHIVAJINAGAR, PUNE 411 005. 2. ITO 26 (2) (1), MUMBAI 400 002. 3. CIT(A)-28, 15/16, B WING, 3 RD FLOOR, MITTAL COURT, NARIMAN POINT, MUMBAI-400 021. 4. CIT, M.C.-26, MUMBAI. 5. DR B BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI. 3 DATE INITIALS 1. DATE OF DICTATION 17-01-11 SR. PS 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER/OTHER MEMBER 17-01-11 SR. PS 3. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER A.M . 4. APPROVED DRAFT COMES TO THE SR. P.S. SR. P.S. 5. KEPT FOR PRONOUNCEMENT ON SR. PS 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK SR. PS 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 8. THE DATE ON WHICH THE FILE GOES TO THE ASST. REGI STRAR FOR SIGNATURE ON THE ORDER 9. DATE OF DESPATCH OF THE ORDER