ITO (E) 1(1), MUMBAI V. BHAGWAN SHRI HAMSA TRUST, MUMBAI

ITA 2076/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8895 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bonafide belief; Wrong claim

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , , , BEFORE SHRI RAJENDRA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.2076/MUM/2015 ( / ASSESSMENT YEAR: 2008-09) OFFICE OF THE INCOME TAX OFFICER (EXEMPTION) 1(1) ROOM NO.508, 5 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, MUMBAI 400012 / VS. BHAGWAN SHRI HAMSA TRUST 21, SILVER SANDS, 214, VEER SAVARKAR MARG, MAHIM MUMBAI - 400016 ./ ./PAN/GIR NO. : AABTB2942B ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 30.11.2016 /DATE OF PRONOUNCEMENT: 04.01.2017 / O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 29.01.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 1, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2008-09 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- REVENUE BY: SUMAN KUMAR ASSESSEE BY: SHRI SATISH R. MODY ITA NO. 2076 /M/201 5 A.Y. 2008-09 2 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A), ERRED IN CANCELLING THE PENALTY LEVIED U/S.271(1)(C), BY CONCLUDING THAT ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY LEVIED U/S.271(1)(C) OF RS.13,07,173/- ON WRONG CLAIM OF EXEMPTION U/S.11 OF RS.38,45,760/-, BY ACCEPTING THAT ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS. HOWEVER, VIDE LETTER DATED 12.03.2012 ASSESSEE HAD ACCEPTED INACCURATE CLAIM OF EXEMPTION ON THE BASIS OF BONAFIDE BELIEF. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, MUMBAI BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y.2008-09 AT NIL BY CLAIMING EXEMPTION U/S.11 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). HOWEVER, THE ASSESSMENT WAS COMPLETED AFTER DENYING EXEMPTION U/S.11 OF THE ACT, BECAUSE THE ASSESSEE WAS NOT HAVING REGISTRATION CERTIFICATE U/S.12AA OF THE ACT FOR A.Y.2008- 09. THEREAFTER, THE ASSESSING OFFICER INITIATED THE PENALTY IN VIEW OF SECTION 271(1)(C) OF THE ACT AND LEVIED THE PENALTY TO THE TUNE OF RS.13,07,173/-. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE PENALTY. FEELING AGGRIEVED, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEARNED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. IN ALL THE ISSUES THE REVENUE HAS RAISED THE POINT IN CONNECTION WITH DELETION THE PENALTY BY THE CIT(A). IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.Y.2008-09 AT RS- NIL BY CLAIMING THE ITA NO. 2076 /M/201 5 A.Y. 2008-09 3 EXEMPTION U/S.11 OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE WAS NOT HAVING THE REGISTRATION CERTIFICATE U/S.12AA OF THE ACT FOR THE A.Y.2008-09. THE REGISTRATION U/S.12A OF THE ACT WAS GRANTED TO APPELLANT W.E.F 01.04.2008 I.E. AFTER THE A.Y.2009-10. IN VIEW OF THE SAID CIRCUMSTANCES, IT IS QUITE CLEAR THAT THE ASSESSEE HAS RAISED THE FALSE CLAIM BY FURNISHING THE INACCURATE PARTICULARS BY CLAIMING TAXABLE INCOME AS NIL WHEREAS THE ASSESSEE WAS NOT ENTITLED TO CLAIM THE EXEMPTION BECAUSE HE WAS NOT HAVING THE REGISTRATION U/S.12AAOF THE ACT FOR THE RELEVANT ASSESSMENT YEAR. IN BRIEF HE WAS NOT HAVING THE EXEMPTION U/S.12AA OF THE ACT FOR THE RELEVANT ASSESSMENT YEAR BUT SOUGHT THE EXEMPTION U/S.12AAOF THE ACT FOR THE ASSESSMENT YEAR 2008-2009 WRONGLY AND ILLEGALLY. NO DOUBT IN THE SAID CIRCUMSTANCES THE PROVISION OF SECTION 271(1)(C) OF THE ACT IS QUITE APPLICABLE AND THE LAW RELIED BY THE CIT(A) IN HIS ORDER I.E CIT VS. RELIANCE PETROPRODUCTS [2010 ] 3 TAXMANN.COM 47 IS NO WHERE APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE CIT(A) HAS DECIDED THE MATTER WRONGLY AND ILLEGALLY THEREFORE, THE ORDER IN QUESTION IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE ORDER OF THE CIT(A) AND UPHOLD THE ORDER OF THE ASSESSING OFFICER. 5 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE ALLOWED. ITA NO. 2076 /M/201 5 A.Y. 2008-09 4 ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JANUARY, 2017 . SD/- SD/- (RAJENDRA) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 4 TH , 2017 MP / 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. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI