Shri Dipak M.Doshi, Baroda V. The Income tax Officer,Ward-5(3), Baroda

ITA 2161/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9997 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Assessee Lawyers: M J SHAH
• Keywords: Bonafide belief
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.2161/AHD/2013 (ASSESSMENT YEAR:2008-09) DIPAK M. DOSHI 2 ND FLOOR, D TOWER, KUNJ RESI CUM PLAZA, RAJMAHAL ROAD,VADODARA APPELLANT VS. THE INCOME TAX OFFICER, WARD-5(3), BARODA RESPONDENT PAN: ABDPD6238E / BY ASSESSEE : SHRI M. J. SHAH, A.R. / BY REVENUE : SHRI DEEPAK SUTARIA, SR. D.R. /DATE OF HEARING : 23.09.2016 /DATE OF PRONOUNCEMENT : 29.11.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE CIT(A)-V, BARODAS ORDER DATED 08.04.2013, IN APPEA L NO. CAB/(A)V-59/11- 12, IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE I NCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NO. 2161/AHD/2013 (DIPAK M. DOSHI VS. ITO) A.Y. 2008-09 - 2 - 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGE S SECTION 271(1)(C) PENALTY OF RS.50,535/- AS IMPOSED BY BOTH THE LOWE R AUTHORITIES. FACTS OF THE CASE ARE IN A VERY NARROW COMPASS. THIS ASSESSEE F ILED RETURN ON 28.09.2008 STATING INCOME OF RS.2,29,180/-. THE ASSESSING OFF ICER APPEARS TO HAVE ISSUED SECTION 142(1) R.W.S. 143(2) NOTICES ON TOTA L FIVE OCCASIONS DURING SCRUTINY FROM 19.08.2009 TO 04.10.2010. THE ASSESS EE REVISED HIS COMPUTATION OF INCOME ON 24.11.2010 INCLUDING INTER EST INCOME OF RS.1,79,479/- RECEIVED FROM ANDHRA BANK DURING FINA NCIAL YEAR 2007-08 RELEVANT TO THE IMPUGNED ASSESSMENT YEAR WHICH HAD NOT BEEN SHOWN EARLIER IN THE ORIGINAL RETURN. HE QUOTED REASON THEREOF I N LETTER DATED 25.11.2010 THAT THE ABOVE NON DISCLOSURE WAS ON ACCOUNT OF IS BONAFIDE BELIEF THAT THE SAID INCOME WAS NOT TAXABLE. THE ASSESSING OFFICER FRAMED THE REGULAR ASSESSMENT IN QUESTION ON 26.11.2010 ADDING THE ABO VE INTEREST INCOME. HE FURTHER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. THE ASSESSEE DID NOT FILE ANY APPEAL. QUANTUM PROC EEDINGS ATTAINED FINALITY ACCORDINGLY. 3. WE COME TO IMPUGNED PENALTY PROCEEDINGS NOW. TH E ASSESSING OFFICER PASSED PENALTY ORDER ON 30.05.2011 DECLININ G ASSESSEES EXPLANATION ONCE AGAIN PLEADING THE ABOVE FACTS TO BE A BONAFID E MISTAKE. THE CIT(A) CONFIRMS THE SAME. 4. WE HAVE HEARD BOTH THE PARTIES. THERE IS HARDLY ANY DISPUTE THAT THE ASSESSEE HAD NOT DISCLOSED HIS INTEREST INCOME IN Q UESTION IN THE ORIGINAL RETURN AS WELL AS DURING SCRUTINY INVOLVING VARIOUS CORRESPONDING NOTICES NARRATED HEREINABOVE. THE FACT ALSO REMAINS THAT H E FILED REVISED COMPUTATION OF INCOME INCLUDING THE ABOVE INTEREST INCOME BEFOR E FRAMING OF THE REGULAR ASSESSMENT. THIS IS NOWHERE THE ASSESSING OFFICER S CASE THAT HE HAD EVER POINTED OUT TO THE ASSESSEE ABOUT HIS INTEREST INCO ME LEFT TO BE DECLARED IN THE ITA NO. 2161/AHD/2013 (DIPAK M. DOSHI VS. ITO) A.Y. 2008-09 - 3 - COURSE OF ABOVE STATED NOTICES. THE ASSESSEE HAS A LSO NOT FILED ANY APPEAL AGAINST THE QUANTUM ADDITION DESPITE THE FACT THAT HE HAD HIMSELF REVISED COMPUTATION OF INCOME AS ALREADY STATED IN THE PREC EDING PARAGRAPH. WE OBSERVE IN THESE PECULIAR FACTS THAT HONBLE APEX C OURT DECISION IN PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT (2012) 348 ITR 306 (SC) SQUARELY APPLY IN FACTS OF THE INSTANT CASE WHEREIN THE SAID ASSESSEE HAD COMMITTED A SILLY MISTAKE IN SHOWING A PROVISION TOWARDS GRATUI TY AS NOT ALLOWABLE AND ALSO CLAIM THE SAME IN RETURN OF INCOME. WE DRAW S UPPORTS THEREFROM TO ACCEPT ASSESSEES ARGUMENT SEEKING TO DELETE THE IM PUGNED SECTION 271(1)(C) PENALTY UNDER CHALLENGE. 5. THIS ASSESSEEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF NOVEMBER, 2016.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 29/11/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0