PARAG LAXMAN DUSANE, MUMBAI V. ITO WD 3(1), MUMBAI

ITA 1972/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84481 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 12-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 10-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LAV KUMAR

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.1972/MUM/2011 (A.Y.2005-06) MR.PARAG LAXMAN DUSANE, C/O. MK BHIWANDIKAR & CO., 103, HARI OM ARCADE, OPP. KASTURI PLAZA, DOMBIVILI (E), PAN:AENPD 3409D (APPELLANT ) VS. ITO WARD 3(1), RANI MENSSION, 2 ND FLOOR, MURBAD ROAD, KALYAN(W). (RESPONDENT) APPELLANT BY : SHRI N.A.KULKARNI RESPONDENT BY : SHRI LA V KUMAR DATE OF HEARING : 11/12/2014 DATE OF PRONOUNCEMENT : 11 /12/2014 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-1, THANE DATED 31/12/2010 FOR ASSESSM ENT YEAR 2005-06. GROUNDS OF APPEAL READ AS UNDER: THE CIT(A)-1 HAS CONFIRMED THE PENALTY LEVIED BY A.O OF RS.27070/- 2. THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF MANUFACTURING ENGINEERING GOODS. CONCEALMENT PENALTY OF RS.27,07 0/- IS LEVIED ON AN ADDITION OF RS.88,458/- BEING DIFFERENCE BETWEEN THE SUNDRY CRE DITORS SHOWN IN THE BALANCE SHEET AND LIST SUBMITTED BY THE ASSESSEE OF CREDITO RS AND DEBTORS. IN REPLY TO THE SHOW CAUSE PROPOSING ADDITION THE ASSESSEE HAS SUB MITTED THAT M/S. CADEL ENGG. WORKS OF DADAR IS ONE OF ITS CREDITORS BEING CUSTOM ER SINCE LAST EIGHT YEARS TO WHOM A SUM OF RS.1,45,225/- WAS DUE AND SUNDRY DEBTORS I NCLUDE AN AMOUNT OF ITA NO.1972/MUM/2011 (A.Y.2008-09) 2 RS.40,579/- RECEIVABLE FROM OTHER SUNDRY DEBTORS RE SULTING INTO NET AMOUNT PAYABLE AT RS.1,04,646/-. ON RECONCILIATION IT WAS REVEALE D THAT THERE IS RATE DIFFERENCE IN MANY OF THE BILLS THROUGH OUT LAST EIGHT YEARS WHIC H WERE GIVEN EFFECT IN THE LEDGER OF M/S. CADEL ENGG. WORKS BUT DUE TO NON-AVAILABILITY OF INTIMATION OF ASSESSEE THE OUTSTANDING AMOUNT SHOWN IN THE BOOKS OF ACCOUNTS WAS MORE THAN THEIR BOOKS OF ACCOUNTS. IT WAS ALSO SUBMITTED THAT NOW BOOKS HAV E BEEN RECONCILED AND THE DIFFERENCE WOULD BE WRITTEN OFF IN THE CURRENT YEAR AND IT WAS SUBMITTED THAT ASSESSEE HAS NO OBJECTION IF THE SAID AMOUNT IS ADDED TO HIS INCOME UNDER SECTION 41(1) OF THE ACT. IT IS ON SUCH ADDITION IMPUGNED PENALTY HAS B EEN LEVIED. DURING THE COURSE OF PENALTY PROCEEDINGS ALSO ASSESSEE SUBMITTED SIMILAR REPLY AND IT WAS SUBMITTED THAT THE DIFFERENCE CANNOT BE TREATED AS CONCEALED INCOM E AND REFERENCE WAS MADE TO THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CAS E OF CIT VS. EID MOHAMMED NIZAMUDDIN, 18(1) ITCL 175 (RAJ). COPY OF THE DECI SION IS ALSO FILED IN THE PAPER BOOK. HOWEVER, AO DID NOT ACCEPT SUCH SUBMISSION O F THE ASSESSEE AND LEVIED THE IMPUGNED PENALTY. LD. CIT(A) ALSO HAS UPHELD THE P ENALTY. THE ASSESSEE IS AGGRIEVED, HENCE, HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. 3. LD. AR SUBMITTED THAT DIFFERENCE IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND CREDITORS BOOK WAS EXPLAINED TO THE AO. NO FACT WA S CONCEALED. THUS, IT WAS PLEADED BY LD. AR THAT AO HAS COMMITTED AN ERROR IN LEVYING PENALTY AND LD. CIT(A) HAS ALSO ERRED IN CONFIRMING THE PENALTY. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. UPON CAREFUL CONSIDERATION WE FOUND TH AT IT IS NOT A FIT CASE WHERE LEVY OF PENALTY CAN BE HELD TO BE JUSTIFIED. RECONCILIATIO N WAS SUBMITTED BY THE ASSESSEE EVEN BEFORE AO DURING THE COURSE OF ASSESSMENT PROC EEDINGS THOUGH IT IS DIFFERENT MATTER THAT ASSESSEE HAD SUBMITTED NO OBJECTION FOR ADDITION OF THE SAME BUT BY THAT FACT THE AMOUNT CANNOT BE CONSIDERED TO BE A CONCE ALED INCOME. THEREFORE, WE DELETE THE PENALTY AND ALLOW THE APPEAL FILED BY TH E ASSESSEE. ITA NO.1972/MUM/2011 (A.Y.2008-09) 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/12/2014 ! ' #$ % &'( 11/12/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 11/12/2014 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS