PRIME MULTI TILES TRADING P.LTD`, MUMBAI V. DCIT CEN CIR 33, MUMBAI

ITA 1987/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75294 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO.1987/M/2012 ( / ASSESSMENT YEAR: 2007 - 2008 ) PRIME MULTI TILES TRADING P. LTD., DEV PLAZA, 2 ND FLOOR, OPP. SHOPPERS STOP, S.V. ROAD, ANDHERI (W), MUMBAI 400 056. / VS. DCIT - CC - 33, AAYAKAR BHAVAN, MUMBAI 400 020. ./ PAN : AADCP 6520 C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY MEHTA / RESPONDENT BY : SHRI RAVI PRAKASH / DATE OF HEARING : 16 .1.2014 / DATE OF PRONOUNCEMENT : 24 .1.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 26.3.2012 IS AGAINST THE ORDER OF THE CIT (A) - 37, MUMBAI DATED 30.11.2011 FOR THE ASSESSMENT YEAR 2007 - 2008. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN PARTLY CONFIRMING THE ORDER OF THE AO PASSED U/S 271(1)(C) OF THE ACT. 2. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF PENALTY ON AMOUNT OF RS. 14,94,634/ - BEING INCOME ENHANCED BY F ILING OF REVISED RETURN OF INCOME. 3. AT THE OUTSET, SHRI VIJAY MEHTA, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE FACT THAT THE ASSESSEE FILED THE RETURN OF INCOME ORIGINALLY ON 28.11.2007 DECLARING THE TOTAL INCOME OF RS. 35,52,030/ - . SUBS EQUENTLY, ON FINDING CERTAIN OMISSIONS OR COMMISSIONS IN THE BOOKS OF ACCOUNTS DURING THE FINALIZATION OF THE ACCOUNTS FOR THE SUBSEQUENT YEAR, ASSESSEE NOTICED THAT THERE IS A NEED FOR FILING 2 OF REVISED RETURN OF INCOME AND FILED THE SAME ON 2.12.2008, WH ICH IS VALID U/S 139(5) OF THE ACT. ADDITIONAL INCOME DISCLOSE D BY THE ASSESSEE RELATES TO THE WITHDRAWAL OF AMOUNT WRONGLY DEBITED ON SALES TAX EXPENSES ACCOUNT. THE AMOUNT IS RS.14,94,634/ - . IT IS AN INADVERTENT AND ERRONEOUS MISTAKE, AND THEREFORE, T HE ASSESSEE SUO MOTO REVISED THE RETURN OF INCOME RECTIFYING THE ABOVE ERROR BEFORE THE SAME WAS DEDUCTED BY THE ASSESSING AUTHORITIES. IN CONNECTION WITH THIS AMOUNT OF RS. 14,94,634/ - , AO LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT VIDE THE ORDER DATED 21.6.2010. MATTER TRAVELLED TO THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) CONFIRMED THE SAME RELYING ON CERTAIN DECISIONS NARRATED IN PARA 2.3.1 TO 2.3.10 OF HIS ORDER. AGGRIEVED WITH THE DECISION OF THE CIT (A), ASSESSEE FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 5. DURING THE PROCEEDINGS BEFORE US, SHRI VIJAY MEHTA, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DECISIONS RELIED UPON BY THE CIT (A) ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, WHERE THE SAID SUM CONSTITUTES A WRONG DEBIT WHICH IS REVISED BY FILING A VALID REVISED RETURN OF INCOME BEFORE THE AO POINTED OUT THE SAME. THEREFORE, THE RE IS NO CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS. AS PER THE LD COUNSEL, THIS IS NOT A FIT CASE FOR INVOKING THE PENALTY UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. 6. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENU E AUTHORITIES. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE FACTS AVAILABLE ON RECORD. IN THIS CASE, ASSESSEE FILED THE REVISED RETURN OF INCOME IN VIEW OF THE VALID OMISSIONS AND COMMISSIONS MADE IN THE O RIGINAL RETURN OF INCOME. IT IS NOT THE CAS E THAT THE AO FIRST POINTED OUT THE MISTAKES, AND THEREFORE, THE REVISED RETURN OF INCOME WAS FILE D . THE CASES RELIED ON BY THE CIT (A) WHILE CONFIRMING THE PENALTY ARE DISTINGUISHABLE TO THE FACTS OF THE PRESENT CASE. THEREFORE, IN OUR OPINION, THIS IS NOT THE FIT CASE FOR LEVYING AND CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT. ACCORDINGLY, GROU NDS RAISED BY THE ASSESSEE ARE ALLOWED . 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 3 ORDER PRON OUNCED IN THE OPEN COURT ON 2 4 T H JANUARY, 2014. S D / - S D / - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 24 .1 .2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI