GHARANDAJ BUILDERS, MUMBAI V. ITO 21(1)(4), MUMBAI

ITA 2780/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3918 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide mistake

Judgement Text

BEFORE INCOME TAX APPELLATE TRIBUNAL, BENCH D MUM BAI BEFORE SHRI BR BASKARAN, ACCOUNTANT MEMBER AND SH PAWAN SINGH, JUDICIAL MEMBER ITA NO. 2780/M/2015 FOR AY 2009-10 M/S GHARANDAJ BUILDERS MOHANLAL JAIN &CO. CHARTERED ACCOUNTANTS 10, CHARTERED HOUSE, GROUND FLOOR, DR C H STREET, MARINE LINES, MUMBAI-400002 PAN- AABFG9249G VERSUS INCOME TAX OFFICER 21(1)(4) ROOM NO. 108, PIRAMAL CHAMBERS MUMBAI - 400012 ASSESSEE REPRESENTED BY: SHRI SANJAY KAPADIA AR REVENUE REPRESENTE D BY: SHRI BS BIST DR DATE OF HEARING: 25/07/2016 DATE OF PRONOUNCEM ENT: 05/08/2016 ORDER PER PAWAN SINGH, JUDICIAL MEMBER 1. THE PRESENT APPEAL IS FILED BY ASSESSEE AGAINST THE CONFIRMATION OF PENALTY ORDER LEVIED UNDER SECTION 271 (1) (C) OF THE ACT, BY THE COMMISSIONER OF INCOME TAX APPEALS DATED 19 MARCH 2015 FOR ASSESSMENT YEAR 200 9 10. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 26 TH OF SEPTEMBER 2009 DECLARING TOTAL INCOME AT NIL. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY. WHILE FRAMING ASSESSMENT ORDER THE AO OBSERVED THAT THE ASSESSEE HAS RECEIVED INTEREST IN COME OF RS. 2,58,300/- FROM COSMOS CO-OPERATIVE BANK LTD, WHICH WAS NOT SHOWN E ITHER IN THE PROFIT AND LOSS ACCOUNT OR IN COMPUTATION OF INCOME FURNISHED DURIN G THE PROCEEDINGS. WHEN THIS FACT WAS BROUGHT TO THE NOTICE OF ASSESSEE, ASSESSE E AGREED TO CONSIDER THE INTEREST AS INCOME FROM OTHER SOURCES. THE AO CONCLUDED THAT THE ASSESSEE CONCEALED THE INTEREST INCOME, THUS PENALTY PROCEEDING WERE INITI ATED AGAINST THE ASSESSEE. NOTICE FOR INITIATING THE PENALTY PROCEEDING WAS ISSUED ON 29 DECEMBER 201, NO REPLY WAS FURNISHED BY THE ASSESSEE DESPITE OPPORTUNITY. THER EFORE, THE ASSESSEE WAS HELD AS ITA NO.2780/M/2015 F OR AY 2009-10 GHARANDAJ BUILDERS DEFAULTER UNDER SECTION 271(1) (C) OF THE ACT AND M INIMUM PENALTY @ OF 100% WAS LEVIED I.E.F RS. 79,815/- VIDE ORDER DATED 28 TH JUNE 2012. AGGRIEVED BY THE ORDER OF PENALTY THE ASSESSEE FILED APPEAL BEFORE COMMISSION ER OF INCOME TAX APPEALS BUT WITHOUT ANY SUCCESS. THUS THE PRESENT APPEAL IS FIL ED BEFORE US. 3. WE HAVE HEARD LD AR FOR ASSESSEE AND LD DR FOR REVE NUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD AR OF THE ASSESSEE ARGU ED THAT THE ASSESSEE IS A BUILDER AND THE AMOUNT LYING DEPOSITED IN THE BANK WAS THE AMOUNT OF CONTRIBUTION OF THE OCCUPANTS OF THE BUILDING. THE ASSESSEE HAS NOT EAR NED ANY INTEREST INCOME. THE ASSESSEE HAS FULLY AND TRULY DISCLOSED ALL PARTICUL AR OF HIS INCOME. THE ASSESSEE HAS NOT CONCEALED THE PARTICULAR OF INCOME. THE ORDER O F PENALTY IS AN EX PARTE ORDER. ON THE OTHER HAND LEARNED DR FOR REVENUE ARGUED THAT T HE ASSESSEE INTENTIONALLY AND DELIBERATELY CONCEALED THE PARTICULARS OF INCOME. T HE ASSESSEE MAY HAVE SUCCESSFULLY CONCEALED THE INCOME, UNLESS THE RETURN WAS NOT SEL ECTED FOR SCRUTINY. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ORDER OF PENALTY PASSED AGAI NST THE ASSESSEE IS EX-PARTE ORDER. DURING THE STAGE OF FIRST APPELLATE PROCEEDING, IT WAS SUBMITTED THAT THE ASSESSEE NEITHER RECEIVED ANY INTEREST, NOR ANY INTIMATION W AS RECEIVED FROM BANKERS. IT WAS FURTHER PLEADED THAT THIS WAS A BONAFIDE MISTAKE WI THOUT ANY MALAFIDE INTENTION AND PRAYED THAT NO PENALTY SHOULD HAVE BEEN LEVIED. THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY THE FIRST APPELLATE AUTHORITY AND THE O RDER OF PENALTY WAS CONFIRMED. NOW, THE ASSESSEE HAS COME WITH THE PLEA THAT THE A MOUNT ON WHICH INTEREST WAS ACCRUED IS THE AMOUNT/CONTRIBUTION OF OCCUPANT, DEP OSITED IN THE BANK, WHO IS OCCUPYING THE BUILDING. NO SUCH EVIDENCE IN THE FOR M OF DOCUMENT SUBSTANTIATING THE ARGUMENT OF LD AR OF ASSESSEE IS PLACED ON RECORD. HOWEVER, KEEPING IN VIEW THE SMALLNESS OF THE MATTER AND THE ASSESSEE WAS EX-PAR TY BEFORE AO, WE DEEM IT APPROPRIATE TO RESTORE THE CASE TO THE FILE OF AO F OR VERIFICATION OF THE CLAIM OF THE ASSESSEE. IF THE AMOUNT ON WHICH INTEREST ACCRUED I S THE AMOUNT DEPOSITED BY THE OCCUPANTS OF THE BUILDING. AFTER SUCH VERIFICATION THE AO SHALL PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW. IN CASE, ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM DURING THE PROCEEDING BEFORE THE AO, THE AO WOULD BE AT LIBERT Y TO INITIATE THE PENALTY PROCEEDING AFRESH. ITA NO.2780/M/2015 F OR AY 2009-10 GHARANDAJ BUILDERS 5. WITH THESE OBSERVATIONS THE PRESENT APPEAL IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER ANNOUNCED IN OPEN COURT ON 5 TH DAY OF AUGUST 2016. SD/- SD/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/08/2016 C OPY 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 COPY/