ASHOK KUMAR DAMANI, MUMBAI V. DCIT 4(1), MUMBAI

ITA 249/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8253 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Keywords: Bonafide mistake

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ITA N O. 249 / MUM/20 1 3 ( ASSESSMENT YEAR : 20 0 9 - 20 10 ) SHRI ASHOK KUMAR DAMANI, SURYA MAHAL, 1 ST FLOOR, 5, BURJORIJI BHARUCHA MARG, FORT, MUMBAI - 400 023 VS. DCIT 4(1), MUMBAI PAN/GIR NO. : A A BDP 1845 K ( APP ELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI HIRO RAI /REVENUE BY : SHRI ASGHAR ZAIN DATE OF HEARING : 4 TH DECEMBER , 201 4 DATE OF PRONOUNCEMENT 12 TH DECEMBER , 201 4 O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 19 - 12 - 2012 FOR THE ASSESSMENT YEAR 200 9 - 10 , IN THE MATTER OF PENALTY IMPOSED U/S.271(1)(C) OF THE ACT . 2. RIVAL CONTENTIONS HAVE BE EN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT ASSESSEE HAS DECLARED DIVIDEND INCOME OF RS. 1, 07,63,886/ - CLAIMED AS EXEMPT U/S.10(33). THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS OF DIVIDEND RECEIVED. IN RESPONSE TO THE SAME, THE ASSESSEES AR HAS S UBMITTED THE DETAILS OF D IVIDEND RECEIVED AND ALSO SUBMITTED THAT DIVIDEND STRIPPING U/S.94(7) WAS NOT DISALLOWED IN THE COMPUTATION OF ITA NO. 249 / 1 3 2 INCOME BY OVERSIGHT. AS PER THE DETAILS SUBMITTED BY THE ASSESSEE THE LOSS DISALLOWANCE U/S.94(7) ON ACCOUNT OF DIVIDEND STRIPPING WAS RS. 35,84,692/ - . AFTER VERIFICATION, LOSSES TO THE EXTENT OF RS. 35,84,692/ - IS DISALLOWED AND ADDED TO THE TOTAL INCOME U/S.94(7) OF THE ACT. PENALTY PROCEEDINGS U/S.271(1)(C) OF THE IT ACT WERE ALSO INITIATED FOR FURNISHING INACCURATE PARTIC ULARS OF INCOME. ACCORDINGLY, PENALTY OF RS. 12,18,437/ - WAS IMPOSED. 3. BY THE IMPUGNED ORDER, THE CIT(A) CONFIRMED THE PENALTY. 4. AGAINST THE ABOVE ORDER OF CIT(A), ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. IT WAS ARGUED BY THE LEARNED AR THAT ASSESSE E HAS SUBMITTED DETAILS OF DIVIDEND STRIPPING AND ALSO SUBMITTED THAT IN COMPUTATION OF INCOME BY OVERSIGHT DIVIDEND STRIPPING U/S.94(7) WAS NOT DISALLOWED. THE SAME WAS OFFERED FOR TAXATION AND NO APPEAL WAS FILED. LEARNED AR ALSO DREW OUR ATTENTION TO TH E RETURN OF INCOME FILED BY ASSESSEE IN EARLIER YEAR S , WHEREIN HE WAS ALSO AWARDED CERTIFICATE OF HIGHEST TAX PAYER . AS PER LEARNED AR ONLY DUE TO INADVERTENT MISTAKE, WHICH WAS ACCEPTED BY THE ASSESSEE EVEN BEFORE AO POINTED OUT ANY SUCH DISCREPANCY, THER EFORE, PENALTY U/S.271(1)(C) WAS NOT IMPOSABLE. FOR THIS PURPOSE, RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS : - I) MUMBAI BENCH IN ITA NO.1625/MUM/2012, ACIT VS. MR. RAMESH D. DAMANI; II) 348 ITR 306 (SC) PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT; III ) 259 CTR 383 (BOM) CIT VS BENNETT COLEMAN & CO. LTD.; IV) 352 ITR 592 CIT(BOM) VS. SOMANY EVERGREE KNITS LTD., V) 348 ITR 339 (DEL) CIT VS. BRAHMAPUTRA CONSORTIUM LTD.; AND VI) 44 SOT 26 (MUM - TRIB) WALTER SALDHANA VS. DC . ITA NO. 249 / 1 3 3 6. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDERS OF LOWER AUTHORITIES. 7. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS CITED AT BAR. WE FOUND THAT EXACTLY SIMILAR ISSUE WAS DEALT BY T HE TRIBUNAL IN CASE OF MR. RAMESH M. DAMANI, ITA NO.1625/MUM/2012 , VIDE ORDER DATED 22 - 8 - 2014, WHEREIN IT WAS HELD THAT UNDER SUCH CIRCUMSTANCES, IT WAS NOT A CASE OF CONCEALMENT OF INCOME RATHER THAN BONAFIDE MISTAKE. BEFORE THE AO DETECTED ANY CONCEALMEN T OF INCOME, THE ASSESSEE HAS FILED DETAILS OF DISALLOWANCE U/S.94(7) IN THE ORDINARY COURSE OF ASSESSMENT PROCEEDINGS. THE FACTS AND CIRCUMSTANCES IN THE INSTANT CASE ARE EXACTLY SIMILAR, WHEREIN ASSESSEE HAS CONCEDED BEFORE ANY DETECTION BY THE AO. 8. A S THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDEATION ARE PARI MATERIA TO THE FACTS DISCUSSED BY THE TRIBUNAL IN CASE OF MR RAMESH M. DAMANI (SUPRA), RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL, WE DIRECT THE AO TO DELETE THE PENALTY SO IMPOSED. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 /12 / 201 4 . 12 /12 / 2014 SD/ - SD/ - ( ) ( SANJAY GARG ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 12 /12 /2014 /PKM , PS ITA NO. 249 / 1 3 4 COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//