PUSHPA DODEJA HUF, ULHASNAGAR V. DCIT CIR 2, THANE

ITA 1893/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9992 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: BHUPENDRA FAFADIA
• Keywords: Earning of tax free income; Source of fund; Revised return
• Section: 139(5); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.1886 /MUM/2016 (ASSESSMENT YEAR: 2006-07) MS. RAJKUMARI DODEJA VS. INCOME TAX OFFICER - 2(3) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 WND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AAQPD1576L APPELLANT RESPONDENT ITA NOS.1887 & 1888/MUM/2016 (ASSESSMENT YEARS: 2006-07 & 2007-08) MS. JHANVI DODEJA VS. INCOME TAX OFFICER - 2(2) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AFRPD2048F APPELLANT RESPONDENT ITA NOS.1889 & 1890/MUM/2016 (ASSESSMENT YEARS: 2006-07) SHRI HIRANAND DODEJA VS. INCOME TAX OFFICER - 2(1) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AADHD9007K APPELLANT RESPONDENT ITA NOS.1891 & 1892/MUM/2016 (ASSESSMENT YEARS: 2006-07 & 2007-08) PRAMOD DODEJA, HUF VS. INCOME TAX OFFICER - 2(3) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AAGHP0155D APPELLANT RESPONDENT ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 2 ITA NOS.1893 & 1894/MUM/2016 (ASSESSMENT YEARS: 2005-06 & 2006-07) MS. PUSHPA DODEJA VS. D C I T, CIRCLE 2 PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AFGPD3270E APPELLANT RESPONDENT ITA NOS.1895 & 1896 /MUM/2016 (ASSESSMENT YEAR: 2006-07) LEKHRAJMAL DODEJA, HUF VS. INCOME TAX OFFICER - 2(2) L/H PUSHPA DODEJA & OTHERS PLOT NO. B-239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AAEHD0284P APPELLANT RESPONDENT ITA NO.1897 /MUM/2016 (ASSESSMENT YEAR: 2006-07) SHRI MURLI DODEJA VS. D C I T, CIRCLE 2 PLOT NO. B - 240, MANOHAR NIWAS NEAR MAHESH CHS COP. BARAK NO. 172 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AAGHM7874N APPELLANT RESPONDENT ITA NOS. 1898 & 1899/MUM/2016 (ASSESSMENT YEARS: 2006-07 & 2005-06) MS. ROMA DODEJA VS. INCOME TAX OFFICER - 2(3) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN AAQPD1651E APPELLANT RESPONDENT ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 3 ITA NO.1900 /MUM/2016 (ASSESSMENT YEAR: 2006-07) MS. ANITA DODEJA VS. INCOME TAX OFFICER - 2(1) PLOT NO. B - 239, MANOHAR NIWAS NEAR BARACK NO. 171 ULHASNAGAR 421001 2ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W) 421301 PAN ABAPD9427F APPELLANT RESPONDENT APPELLANT BY: SHRI BHUPENDRA SHAH & SHRI BHUPENDRA FAFADIA RESPONDENT BY: SHRI T.A. KHAN DATE OF HEARING: 06.07.2017 DATE OF PRONOUNCEMENT: 10.07.2017 O R D E R PER BENCH ALL THESE APPEALS ARE FILED BY THE ASSESSEES AGAINS T THE RESPECTIVE ORDERS OF THE CIT(A)-3, THANE. 2. AT THE OUTSET THE LEARNED A.R. PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN THE CASE OF OTHER FAMILY MEMBERS WHEREI N SIMILAR PENALTY IMPOSED WAS DELETED BY THE TRIBUNAL VIDE ORDER DATE D 17.02.2017 IN THE CASE OF MURLI DODEJA IN ITA NOS. 3847 & 3848/MUM/20 16 AND IN THE CASE OF CHANDAN DODEJA AND UMESH DODEJA IN ITA NOS. 3734 & 3735/MUM/2016. THE REVENUES CONTENTIONS HAS ALSO B EEN HEARD. 3. THE NET EFFECT IN THESE APPEALS IS THAT THE INCOME TAX ACT DEPARTMENT HAS RECEIVED INFORMATION REGARDING CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEES AND THEIR FAMILY MEMBERS. AS PER THE INFORMATION THE AO OBSERVED THAT THE ASSESSEES HAVE DEPOSITED C ASH IN THE BANK ACCOUNTS OF UNION BANK OF INDIA, ULHASNAGAR, WHICH WERE NOT DISCLOSED IN THE ORIGINAL RETURNS OF INCOME. HOWEVER, THE ASSESS EES ON GETTING INFORMATION FROM THEIR OWN SOURCES FILED REVISED RE TURNS. THE AO ISSUED NOTICES UNDER SECTION 148 ON 27.04.2012 AND COMPLET ED THE ASSESSMENTS ON 30.10.2013 DETERMINING THE INCOME. THE ASSESSEES HAVE CLAIMED THE ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 4 MONEY IN CASH WAS RECEIVED ON DIVISION OF FAMILY BU SINESS AMONGST FAMILY MEMBERS AND IN VIEW OF THE ADVICE OF THEIR ADVOCATE -CUM-TAX CONSULTANT THE SAME WERE NOT DISCLOSED IN THEIR ORIGINAL RETUR NS OF INCOME. THE AO OBSERVED THAT THE ARGUMENT OF THE LEARNED A.R. THAT THE AMOUNT OF CASH WAS NOT OFFERED FOR TAXATION IN VIEW OF THE ADVICE OF THEIR ADVOCATE-CUM-TAX CONSULTANT WAS NOT VALID. IT WAS FURTHER OBSERVED T HAT NO CONFIRMATION OR COPY OF ACCOUNTS WERE FILED SHOWING RECEIPT OF SUCH AMOUNT IN CASH AND THE AMOUNT WAS SIMPLY MENTIONED AS INCOME DECLARED IN COMPUTATION OF INCOME FILED ALONG WITH REVISED RETURN. THE ASSESSE ES FAILED TO SUBSTANTIATE THE REASONS SHOWN BY THEM IN DECLARING THE INCOME R EPRESENTING THE CASH DEPOSITS IN UNION BANK ACCOUNT IN THEIR ORIGINAL RE TURNS OF INCOME. WHEN THE MATTER WENT TO THE CIT(A), THE CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE AO. 4. AGGRIEVED, THE ASSESSEE IS BEFORE US. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE ORDE R OF THE TRIBUNAL PASSED IN THE CASES OF MURLI DUDEJA IN ITA NO.3847 & 3848/ MUM/2016 DATED 17/02/2017, OTHER FAMILY MEMBERS AND IN THE CASE O F CHANDAN DEODEJA AND UMESH DODEJA KARTA UMESH DODEJA, HUF IN ITA NOS . 3734 & 3735/MUM/2016 DATED 18.04.2017 WHEREIN UNDER SIMILA R FACTS AND CIRCUMSTANCES, TRIBUNAL HAVE DELETED THE PENALTY AF TER OBSERVING AS UNDER:- 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO P ERUSED THE MATERIAL AVAILABLE ON RECORD AND CASE LAW'S RELIED UPON BY THE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE FILED O RIGINAL RETURN OF INCOME ON 9TH AUGUST, 2005. THE ASSESSEE HELD BANK ACCOUNT WITH UNION BANK OF INDIA, SHAHAD, ULHASNAGAR IN WHICH AS SESSEE HAD DEPOSITED AN AMOUNT OF RS. 1.5 LACS IN CASH WHICH W AS NOT DECLARED AND DISCLOSED IN THE RETURN OF INCOME ORIGINALLY FI LED WITH THE REVENUE ON 09-08-2005. IT IS THE CONTENTION OF THE ASSESSEE THAT HE RELIED ON THE EXPERT ADVISE OF HIS TAX-CONSULTANT WHO ADVISED HIM THAT THE SAID AMOUNT RECEIVED WAS NOT TAXABLE BEING HIS SHARE IN PROFITS AND INVESTMENT IN DISCONTINUED FAMILY BUSINESS OF PROPE RTIES ON REALIZATION OF FUNDS INVESTED IN THE PROPERTIES ON FAMILY SEPARATION . THE ASSESSEE FILED SO CALLED REVISED RETURN OF INCO ME ON 28TH FEBRUARY, 2011 WHEREIN SAID CASH DEPOSIT OF RS.1.50 LACS IN UNION BANK OF INDIA, SHAHAD WAS DULY INCLUDED AS INCOME A LTHOUGH THE PRESCRIBED TIME LIMIT FOR FILING REVISED RETURN OF INCOME AS PRESCRIBED ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 5 U/S 139(5) OF THE ACT HAD LAPSED LONG BACK ON 31-03 -2007. THE SAID SO CALLED REVISED RETURN OF INCOME WAS ALSO NOT FIL ED BY THE ASSESSEE WITH JURISDICTIONAL AO BUT WITH THE ITO, KALYAN , B UT SAID SO CALLED REVISED RETURN OF INCOME WAS ADMITTEDLY FILED PRIOR TO ISSUANCE OF SEPARATE NOTICE'S U/S 148 OF THE ACT BY ITO, KALYAN AND AS WELL BY THE JURISDICTIONAL AO WHICH REMAINED UNCONTROVERTED AND IS AN ADMITTED POSITION BETWEEN THE RIVAL PARTIES AS NOTI CES U/S 148 OF THE ACT WAS ISSUED BY THE ITO, KALYAN AS WELL JURISDICT IONAL AO ONLY IN THE MONTH OF MARCH 2012 WHILE THE SO CALLED REVISED RETURN OF INCOME WAS FILED EARLIER ON 28-02-2011. IT IS THE SAY OF T HE REVENUE THAT TAX EVASION PETITION WAS FILED AGAINST THE ASSESSEE WHI CH WAS INVESTIGATED BY REVENUE SINCE SEPTEMBER 2010 WHICH IS THE MAIN REASON FOR THE ASSESSEE FILING SO CALLED REVISED RE TURN OF INCOME WITH THE REVENUE ON 28-02-2011. IT WAS THE CONTENTION OF THE REVENUE THAT VERY FEW PERCENTAGE OF THE CASES ARE SELECTED FOR S CRUTINY AND HAD THERE BEEN NO TAX EVASION PETITION FILED AGAINST TH E ASSESSEE , THE ASSESSEE WOULD NOT HAD COME FORWARD TO FILE THE SO CALLED ITA NO. 3848/MUM/2016 REVISED RETURN OF INCOME ON 28-02-201 1. THUS, IT IS THE CONTENTION OF THE REVENUE THAT THE ALLEGED REVI SED RETURN OF INCOME FILED BY THE ASSESSEE ON 28- 02-2011 INCLUDI NG THE SAID UNDISCLOSED INCOME OF RS.1,50,000/- WHICH WAS DEPOS ITED IN CASH IN AN UNDISCLOSED BANK ACCOUNT WITH UNION BANK OF INDI A WOULD HAVE NEVER COME INTO NOTICE OF THE REVENUE AND THERE WOU LD HAVE BEEN LOSS OF REVENUE. MERELY BECAUSE TAX EVASION PETITION IS FILED AGAINST THE TAX- PAYER DOES NOT MEAN THAT THE TAX-PAYER HAS CON CEALED INCOME OR FURNISHED IN-ACCURATE PARTICULARS OF INCOME AND IT COULD NOT BE SAID WITH THE CERTAINTY THAT THE REVENUE WILL IN EACH OF SUCH CASES SHALL PROCEED AGAINST THE TAX- PAYER BY RE-OPENING THE CO NCLUDED ASSESSMENT IN EACH AND EVERY TAX EVASION PETITION F ILED AGAINST THE TAX-PAYER. THE TAX-PAYER CAN ALWAYS COME FORWARD AN D EXPLAIN AND ACCOUNT FOR ITS SOURCES OF INCOME WITH THE RETURN O F INCOME FILED WITH THE REVENUE. THE TAX-PAYER CAN ALSO COME FORWARD WI TH AN EXPLANATION THAT CERTAIN RECEIPTS WERE NOT INCLUDED AS INCOME IN THE RETURN OF INCOME FILED WITH THE REVENUE AS THE SAID RECEIPTS DO NOT BEAR THE CHARACTER OF INCOME WITHIN THE FOUR CORNER S OF CHARGING PROVISIONS OF THE ACT OR THE RECEIPT HAD A CHARACTE R OF BEING AN EXEMPT INCOME WITHIN STATUTORY PROVISIONS OF THE ACT OF 19 61 . THERE ARE ALSO POSSIBILITIES THAT THE TAX EVASION PETITIONS COULD BE FILED TO CAUSE VENGEANCE ON THE TAX-PAYER WITH A MALICE TO SEEK RE VENGE AND RETRIBUTION AGAINST THE TAX-PAYER. THE FATE OF TAX EVASION PETITION HINGES ON THE OUTCOME OF AN ENQUIRY AND INVESTIGATI ON CONDUCTED BY THE REVENUE. THE TAX-PAYER MAY WHEN TAX-EVASION PET ITION IS FILED AGAINST HIM ALSO RE-VISIT HIS FINANCIAL DATA FOR TH E RELEVANT PERIOD AND IN ORDER TO AVOID UN- NECESSARY AND PROTRACTED LITI GATION WITH REVENUE COME FORWARD TO FILE REVISED COMPUTATION OF INCOME AND PAY TAXES WITH APPLICABLE INTEREST ON SOME ADDITIONAL DISCLOS URE OUT OF CAUTION TO AVOID LITIGATION. THIS IS A NORMAL AND REASONABL E HUMAN CONDUCT WHICH FALLS WITHIN PREPONDERANCE OF HUMAN PROBABILI TIES. THE ASSESSEE IN THE INSTANT CASE CAME FORWARD AND FILED SO CALLED REVISED ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 6 RETURN OF INCOME ON 28-02-2011 ALBEIT BEYOND STIPUL ATED TIME U/S 139(5) OF THE ACT OF 1961 WHICH EXPIRED ON 31-03-20 07 BUT BEFORE ITA NO. 3848/MUM/2016 ISSUANCE OF NOTICE U/S 148 OF THE ACT BY THE REVENUE IN THE MONTH OF MARCH 2012 AS WELL THE ASSE SSEE FILED AFFIDAVIT DATED 21-03-2011 EXPLAINING FACTS AND CIR CUMSTANCES UNDER WHICH THE SAID CASH OF RS.1,50,000/- WAS DEPOSITED IN HIS BANK ACCOUNT WHICH WAS NOT INCLUDED IN THE RETURN OF INC OME FILED WITH THE REVENUE WHICH SHOWS AND PROVES BONA-FIDE CONDUCT OF THE ASSESSEE . THE ASSESSEE HAD SUBMITTED THAT THE SAID RECEIPT OF RS.1,50,000/- WHICH WAS DEPOSITED IN CASH IN BANK ACCOUNT WITH UN ION BANK OF INDIA, SHAHAD WAS ADVISED TO BE TAX-FREE BY HIS TAX -EXPERT ADVOCATE FOR LAST THIRTY YEARS .IT IS ALSO SUBMITTED THAT TH E ASSESSEE BEING NOT HIGHLY EDUCATED PERSON TRUSTED THE SAID ADVOCATE TA X-EXPERT AND DID NOT INCLUDED THE SAID RECEIPT OF RS.1,50,000/- IN T HE RETURN OF INCOME FILED WITH THE REVENUE. THE ASSESSEE HAD ALSO FILED AN AFFIDAVIT DATED 21-03-2011 EXPLAINING THE FACTS AND CIRCUMSTANCES W HEREIN THE SAID INCOME WAS NOT INCLUDED AS INCOME IN THE RETURN OF INCOME ORIGINALLY FILED WITH THE REVENUE. REVENUE COULD NOT CONTROVER T THE CONTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE TO PROVE THAT T HE SAID AFFIDAVIT HAD A FALSE OR UNTRUE AVERMENTS MADE BY THE ASSESSEE. I N OUR CONSIDERED VIEW KEEPING IN VIEW FACTS AND CIRCUMSTANCES OF THE CASE, PENALTY LEVIED U/S 271(1)(C) OF THE ACT CANNOT BE SUSTAINED UNDER THE AFORE- STATED CIRCUMSTANCES AS THE ASSESSEE HAD CAME FORWA RD WITH AN EXPLANATION WHICH IS A REASONABLE AND BONAFIDE EXPL ANATION COMPLYING WITH THE MANDATE OF SECTION 271(1)(C) OF THE ACT READ WITH EXPLANATION 1 AND HENCE PENALTY LEVIED BY THE AO U/ S 271(1)(C) OF THE ACT AS CONFIRMED BY LEARNED CIT(A) IS HEREBY ORDERE D TO BE DELETED. THUS, THE ASSESSEE'S APPEAL IN ITA NO. 3847/MUM/201 6 FOR ASSESSMENT YEAR 2005-06 IS ALLOWED . WE ORDER ACCOR DINGLY. 9. THE FACTS IN ASSESSEE'S APPEAL IN ITA NO. 3848/M UM/2016 FOR ASSESSMENT YEAR 2007-08 ARE SIMILAR TO FACTS IN ASS ESSEE'S APPEAL IN ITA 3847/MUM/2016 FOR ASSESSMENT YEAR 2005-06 AND H ENCE OUR DECISION IN ITA NO. 3847/MUM/2016 SHALL APPLY MUTAT IS MUTANDIS TO THE ASSESSEE'S APPEAL ITA NO. 3848/MUM/2016 IN ITA NO 3848/MUM/2016 FOR ASSESSMENT YEAR 2007-08. THUS, TH E ASSESSEE APPEAL IN ITA NO. 3848/MUM/2016 FOR ASSESSMENT YEAR 2007-08 STAND ALLOWED. 10. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA N O. 3847/MUM/2016 FOR ASSESSMENT YEAR 2005-06 AND ITA NO. 3848/MUM/20 16 FOR ASSESSMENT YEAR 2007-08 ARE ALLOWED. 5. AS THE FACTS AND CIRCUMSTANCES IN RESPECT OF THESE ASSESSEES ARE SAME IN SO FAR AS THEY ARE ALSO FAMILY MEMBERS GETT ING SIMILAR AMOUNT ON DIVISION OF FAMILY. RESPECTFULLY FOLLOWING THE DEC ISION OF THE TRIBUNAL IN THE ITA NO. 1900/MUM/2016 SMT. USHA MITTAL 7 CASE OF OTHER FAMILY MEMBERS, WE DO NOT FIND ANY JU STIFICATION FOR IMPOSITION OF PENALTY. 6. IN THE RESULT, APPEALS FILED BY THE ASSESSEES ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2017. SD/ SD/ - (P.K. BANSAL) (D.T. GARASIA) VICE PRESIDENT JUDICIAL MEMBER MUMBAI, DATED: 10 TH JULY, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -3, THANE 4. THE CIT - III, THANE 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.