ASHOK D. JADHAV, PUNE V. DCIT 26(2), MUMBAI

ITA 2369/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8406 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y P PANDIT
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI P.M. JAGTAP (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO. 2369/MUM/2010 ASSESSMENT YEAR- 2002-03 SHRI ASHOK D. JADHAV, C/O MR. D.Y. PANDIT ADV., 1187/10, KRUPA, SHIVAJINAGAR, PUNE-411 055 PAN-AADPJ 4734H VS. THE DY. CIT - 26(2), MUMBAI-400 002 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI Y.P. PANDIT RESPONDENT BY: SHRI VIJAY SHANKAR O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 26.3.2009 PASSED BY THE LD. CIT(A)-XXVI, MUMB AI AGAINST THE CONFIRMATION OF PENALTY OF RS. 10,630/- IMPOSED BY THE ASSESSING OFFICER U/S. 271(1)(C) IN RELATION TO THE ASSESSMENT YEAR 2 002-03 . 2. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN EMPLO YEE OF M/S. BHARAT PETROLEUM CORPORATION LTD. THE EMPLOYER COMPANY A S A STAFF WELFARE MEASURE HAD TAKEN THE PREMISES OF ITS EMPLOYEES ON LEASE AND PAID THEM LEASE RENT AND MAINTENANCE CHARGES AND TREATED THE SAME AS A PERQUISITE IN THE NATURE OF A RENT FREE ACCOMMODATION. AFTER VERIFICATION OF THE RETURN OF INCOME OF THE ASSESSEE FOR A.Y. 2002-03, IT WAS FOUND THAT THE ASSESSEE HAD FILED HIS RETURN AS PER THE TDS SALARY CERTIFICATE IN FORM NO. 16 AND HAD NOT DISCLOSED THE LEASE RENT AND MAI NTENANCE CHARGES RECEIVED BY HIM. THE ASSESSEE HAD CLAIMED INTEREST PAID ON LOAN TAKEN ITA NO. 2369/M/2010 2 FOR ACQUISITION OF HOUSE PROPERTY AS A DEDUCTION BY TREATING THE RENTED PROPERTY AS SELF OCCUPIED PROPERTY AND THEREBY CLAI MED A REFUND OF TAX PAID ON THE SALARY INCOME. THE AO LEVIED PENALTY U/ S. 271(1)(C) OF THE I.T. ACT. THE LD. CIT(A) CONFIRMED THE PENALTY LEVIED B Y THE AO. 4. WE FIND THAT THIS ISSUE IS COVERED BY THE DECISI ON OF MUMBAI TRIBUNAL G BENCH IN THE CASE OF WINSTON I RODRIG UES IN ITA NOS. 1606, 1572 & 1574/M/2010 VIDE ORDER DT. 7 TH JANUARY, 2011 WHEREIN IT HAS BEEN HELD AS FOLLOWS: AT THE TIME OF HEARING, LEARNED COUNSEL, APPEARIN G ON BEHALF OF THE ASSESSEE, RELIED UPON THE FOLLOWING DECISION S OF THE ITAT, MUMBAI BENCHES IN THE CASE OF OTHER EMPLOYEES OF BP CL, WHO WERE SIMILARLY SITUATED, WHEREIN PENALTY LEVIED BY THE A SSESSING OFFICER WAS CANCELLED BY THE TRIBUNAL ON THE GROUND THAT NO N-DISCLOSURE OF MAINTENANCE CHARGES WAS ON ACCOUNT OF A BONAFIDE MI STAKE AND HENCE PENAL PROVISIONS UNDER SECTION 271 (1) (C) OF THE ACT ARE NOT APPLICABLE. (I) ORDER OF ITAT, B BENCH IN THE CASE OF MR. MA KARAND C. JOSHI VIDE ITA. NO. 3522/MUM/2008 DATED 17-9-2009 (II) ORDER OF ITAT, D BENCH IN THE CASE OF SHRI R AVINDRA LAXMAN SATHE VS. ITO VIDE ITA. NO. 2828/MUM/2008 DA TED 22-12-2009 ON THE OTHER HAND LEARNED DR RELIED UPON THE ORDE RS PASSED BY THE TAX AUTHORITIES. HAVING REGARD TO THE RIVAL SUBMISSIONS, AND CONSI STENT WITH THE VIEW TAKEN BY THE ITAT, MUMBAI BENCHES UNDER ID ENTICAL CIRCUMSTANCES, WE ARE OF THE VIEW THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271 (1) (C) OF THE ACT. BY RESPECTFULLY FOLLOWING THE DECISIONS CITED (SUPRA) WE CANCEL THE PENALTY LEVIED BY THE ASSESSING OFFICER AND ALLOW THE APPEALS OF THE ASSESSEE. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE DECISIONS CITED (SUPRA) , WE CANCEL THE PENALTY LEVIED BY THE ASSESSING OFFICER AND ALLOW T HE APPEAL OF THE ASSESSEE. ITA NO. 2369/M/2010 3 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF FEBRUARY, 2011 SD/- SD/- ( P.M. JAGTAP) ( ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 23 RD FEBRUARY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 2369/M/2010 4 DATE INITIALS 1 DRAFT DICTATED ON: 21 . 02 .201 1 SR. PS/PS 2. DRAF T PLACED BEFORE AUTHOR: 22 .02.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ____ __ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______