Varun Murdia, UDAIPUR V. ACIT, UDAIPUR

ITA 258/JODH/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9653 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 20-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MEENA J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.258/JODH/2016 ASSESSMENT YEAR 2010-11 SHRI VARUN MURDIA, COMMERCE HOUSE, TOWN HALL ROAD, UDAIPUR PAN: AIJPM 2705R VS ACIT, CIRCLE-2, UDAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KOTHARI, C.A. RESPONDENT BY : SHRI S.K. MEENA, JCIT-DR. / DATE OF HEARING : 01/03/2017 / DATE OF PRONOUNCEMENT: 03/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 02.03.2016 BY CIT(A)-I, UDAIPUR PERTAINING TO 2010-11 ASSESSMENT YEAR ON FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ASSESSING OFFICER ERRED LEVYING PENALTY U/S.271(1)(C) ON RS.28330/- AND CI T(A) ERRED IN CONFIRMING TO THE EXTENT OF RS.16735/- PARTICULARLY WHEN THERE WAS NO CONCE ALMENT OF INCOME. THE LEVY OF PENALTY IS BAD IN LAW THE SAME MAY PLEASE BE CANCELLED. 2. THE ASSESSEE RESERVED THE RIGHT TO ADD, ALTER O R AMEND THE GROUNDS OF APPEAL 2. AT THE TIME OF HEARING LEARNED AR INVITING ATTEN TION TO THE IMPUGNED ORDER SUBMITTED THAT THE ISSUE SURVIVING FOR CONSIDERATIO N AFTER THE RELIEF GRANTED BY THE CIT(A) IS THE PENALTY CONFIRMED BY THE CIT(A) IN RE GARD TO CLAIMING LONG TERM CAPITAL GAIN ON SALE OF SHARES OF TATA STEELS INADV ERTENTLY AND THE REMUNERATION OF RS.5,000/- RECEIVED FROM DIESEL INDIA INADVERTENTLY NOT INCLUDED IN ITS TOTAL INCOME. BOTH THE ADDITIONS NAMELY SHORT TERM CAPITA L GAIN ON THE SALE OF SHARES AND REMUNERATION HAS BEEN ACCEPTED AND DUE TAXES HA VE BEEN PAID. ITA NO.258-JODH-2016 A.Y. 2010-11 2 2.2 INVITING ATTENTION TO THE WRITTEN SUBMISSION FI LED BEFORE THE CIT(A) AS WELL AS THE ASSESSING OFFICER DATED 11 TH JUNE, 2015 AND 16 TH JULY, 2013, RESPECTIVELY, COPIES OF WHICH PLACED AT PAGES 1-2; AND 3 IT WAS S UBMITTED THE ASSESSEE HAS STATED THAT THERE WAS A MISTAKE OF TEN DAYS LESS THAN 365 DAYS. THE MISTAKE WAS BONA FIDE. IT WAS SUBMITTED THAT THE SHARES WERE PURCHAS ED ON 20 TH NOVEMBER, 2008 AND SOLD ON 10 TH NOVEMBER, 2009 AND BECAUSE OF INADVERTENT MISTAKE OF TEN DAYS THE ASSESSEE BY MISTAKE CLAIMED THAT IT WAS LONG TERM C APITAL GAIN ON THE BELIEF THAT THE SALE WAS AFTER ONE YEAR. THE MISTAKE WAS GENUINE AN D INADVERTENT WITH NO ATTEMPT TO CONCEAL ACCORDINGLY PENALTY ON THIS COUNT IT WAS SUBMITTED MAY BE DELETED. 2.2 SIMILARLY IN REGARD TO THE REMUNERATION OF RS.5 ,000/- RECEIVED FROM DIESEL INDIA IT WAS PLEADED THAT IT WAS AN INADVERTENT MIS TAKE AND PENALTY ON THIS COUNT MAY BE DELETED. IT WAS SUBMITTED ON QUERY THAT THE ASSESSEE IS NOT A HABITUAL DEFAULTER AND THIS IS THE FIRST TIME WHEN SUCH A MI STAKE HAS OCCURRED. 3. LEARNED SR.D.R. IN SUPPORT OF THE IMPUGNED ORDER SUBMITTED THAT A VERY REASONABLE ORDER HAS BEEN PASSED BY THE CIT(A) AND WHERE RELIEF WAS PERMISSIBLE ON FACTS IT HAS ALREADY BEEN GRANTED TO THE ASSESSE E AS WOULD BE EVIDENT FROM THE VIEW TAKEN ON INTEREST OF RS.51,800/- NOT INCLUDED IN THE RETURN STATED TO BE AN INADVERTENT MISTAKE AND WAS ALSO A SUBJECT MATTER F OR PENALTY PROCEEDINGS THE CIT(A) HAS ACCEPTED THE EXPLANATION AS A BONA FIDE EXPLANATION AND HAS ALLOWED RELIEF THEREIN. THE ASSESSEE IN THE YEAR UNDER CONS IDERATION CANNOT BE PRESUMED TO BE MAKING MULTIPLE INADVERTENT MISTAKES AND THUS TH E PENALTY UPHELD BY THE CIT(A) IT WAS SUBMITTED DESERVES TO BE CONFIRMED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE HAS RETURNED A N INCOME OF RS15,03,426/- FROM SALARY, BUSINESS AND OTHER SOURCES. THE ASSESSEE IS STATED TO HAVE INADVERTENTLY NOT INCLUDED IT IN ITS TOTAL INCOME SALE OF TATA STEELS SHARES AS WOULD BE EVIDENT IN PARAGRAPH 3 OF THE IMPUGNED ORDER. THE EXPLANATION OF THE ASSESSEE THAT HE WAS ITA NO.258-JODH-2016 A.Y. 2010-11 3 NOT A HABITUAL DEFAULTER AND HAS INADVERTENTLY MADE A MISTAKE IN THE CALCULATION OF NUMBER OF DAYS AND THE MISTAKE IS STATED TO BE OF O NLY TEN DAYS SHORT OF 365 DAYS IS NOT SHOWN TO BE AN INCORRECT EXPLANATION. CONSIDERI NG THE CONSISTENT EXPLANATION ON RECORD, I AM OF THE VIEW THAT WHEN IT IS CONSIDE RED IN THE LIGHT OF THE DECISION OF THE APEX COURT IN THE CASES OF RELIANCE PETRO PRODU CT AND PRICE WATERHOUSE COOPER, I FIND THAT THE PLEA OF BONA FIDE INADVERTE NT MISTAKE DESERVES TO BE ACCEPTED. ACCORDINGLY PENALTY ON THIS GROUND IS DIR ECTED TO BE DELETED. 4.1 COMING TO THE EXPLANATION QUA THE REMUNERATION OF RS.5,000/- FROM DIESEL INDIA CLAIMED ALSO TO BE AN INADVERTENT MISTAKES. I FIND THAT NOTHING IN SUPPORT OF THE SAID ARGUMENT HAS BEEN PLACED ON RECORD BY THE ASSESSEE. IN THE ABSENCE OF ANY EXPLANATION I FIND NO GOOD REASON TO INTERFERE WITH THE FINDING ARRIVED AT BY THE LD. CIT(A). LEARNED AR HAS PLEADED THAT IT IS A VERY SM ALL AMOUNT HOWEVER THE FACT IS NOT THE SMALLNESS OF THE AMOUNT. THE ISSUE HAS TO B E DECIDED ON THE BASIS OF THE FACTS, EXPLANATIONS AND EVIDENCES QUA THE ADDITION SUSTAINED IN THE ABSENCE OF ANY EXPLANATION WHATSOEVER EXCEPT A BALD STATEMENT THAT IT WAS AN INADVERTENT MISTAKE THE PENALTY IMPOSED IS CONFIRMED ON THIS COUNT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.03.2017 SD/- (SMT. DIVA SINGH) JUDICIAL MEMBER DATED: 03/03/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR