LORRAINE MARIA FONSECA, MUMBAI V. PR.CIT -35, MUMBAI

ITA 2880/MUM/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4287 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 21-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HIMANSHU SHARMA
• Assessee Lawyers: BEHARILAL
• Section: 143(3); 147

Judgement Text

1 ITA 2880/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI JOGINDER SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.2880 /MUM/2017 (ASSESSMENT YEAR: 2007-08) MRS LORRAINE MARIA FONCECA FLAT NO.10, 2 ND FLOOR, BERCHMAN HOUSE, ST. PETERS 31, PALI ROAD, BANDRA (W) MUMBAI 400 050 PAN: AAAPF3419L VS PRINCIPAL CIT-35, MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI BEHARI LAL RESPONDENT BY SHRI HIMANSHU SHARMA DATE OF HEARING 30 -09-2018 DATE OF PRONOUNCEMENT 10 -10-2018 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME-TAX-35, MUMBAI U/S 273A OF THE I.T. ACT, 1961 REJECTING APPLICATION FOR WAIVER OF PENAL TY LEVIED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. 1 THE LEARNED PR. COMMISSIONER OF INCOME TAX 35 HAS ERRED IN LEVYING A PENALTY U/S. 271 (L)(C ) OF THE INCOME TAX ACT, 196 1 OF RS. 10,32,3467- UNDER THE FACTS AND. CIRCUMSTANCES OF THE CASE, HE OUGHT NOT TO HAVE LEVIED THE SAME. 2. THE ORDER OF THE LEARNED PR. COMMISSIONER OF I NCOME TAX 35 IS AGAINST THE WEIGHT OF EVIDENCE AND EQUITY OF NATURAL JUSTIC E. 2 ITA 2880/MUM/2017 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS AN EMPLOYEE OF DELTA AIRLINES INC., A USA COMPANY HAVING ITS BR ANCH OFFICE AT MUMBAI, FILED HER RETURN OF INCOME FOR AY 2007-08 O N 31-07-2008 DECLARING TOTAL INCOME OF RS.9,91,050. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS RECEIVED A SUM OF R S.30,78,664 TOWARDS VOLUNTARY SEPARATION PAYMENT, BONUS AND TAX ADVISORS ALLOWANCE AND THE SAME HAS BEEN CLAIMED EXEMPT U/S 10(10C) OF THE INCOME-TAX ACT, 1961 AND ACCORDINGLY A NOTE HAS BEE N GIVEN IN THE STATEMENT OF TOTAL INCOME. SUBSEQUENTLY, CASE HAS BEEN REOPENED U/S 147 ON THE GROUND THAT INCOME CHARGEABLE TO TAX HAD BEEN ESCAPED ASSESSMENT ON ACCOUNT OF EXEMPTION CLAIMED U/S 10(1 0C) IN RESPECT OF BENEFITS RECEIVED FROM THE COMPANY ON ACCOUNT OF VO LUNTARY RETIREMENT SCHEME. THE ASSESSMENT WAS COMPLETED U/S 143(3) R. W.S. 147 OF THE ACT, ON 26-10-2010 AND DETERMINED TOTAL INCOME OF R S.40,69,697 BY MAKING ADDITION TOWARDS AMOUNT RECEIVED ON ACCOUNT OF VOLUNTARY SEPARATION SCHEME. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A), BUT COULD NOT SUCCEED AS THE LD.CIT( A) HAS DISMISSED APPEAL FILED BY THE ASSESSEE. THE ASSESSEE CARRIED THE MATTER IN FURTHER APPEAL BEFORE THE ITAT. THE ITAT HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH. CONSEQU ENT TO DIRECTIONS OF THE ITAT, THE AO HAS ISSUED NOTICE U/S 143(2) AND CALLE D UPON THE ASSESSEE 3 ITA 2880/MUM/2017 TO FILE NECESSARY DETAILS JUSTIFYING EXEMPTION CLAI MED U/S 10(10C) AND RELIEF CLAIMED U/S 89(1) OF THE INCOME-TAX ACT, 196 1. IN RESPONSE TO NOTICE, ASSESSEE HAS FILED VARIOUS DETAILS AND CLAI MED THAT HER CLAIM OF EXEMPTION U/S 10(10C) AND RELIEF U/S 89(1) IS IN AC CORDANCE WITH LAW. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF T HE ASSESSEE AND ALSO BY RELYING UPON CERTAIN JUDICIAL PRECEDENTS HE LD THAT THE ASSESSEE IS NOT ELIGIBLE TO GET EXEMPTION U/S 10(10C) AS WELL A S RELIEF U/S 89(1) OF THE ACT, AS SAID BENEFIT IS ALLOWED TO THE EMPLOYEES, W HO GOT BENEFIT UNDER VOLUNTARY RETIREMENT SCHEME FROM A PUBLIC SECTOR UN DERTAKING, BUT NOT FOR THE EMPLOYEES, WHO TOOK VOLUNTARY RETIREMENT FR OM FOREIGN COMPANY. THEREAFTER, THE AO INITIATED PENALTY PROCEEDINGS U/ S 271(1)(C) AND AFTER CONSIDERING NECESSARY SUBMISSIONS OF THE ASSESSEE, LEVIED PENALTY OF RS.10,32,346 FOR FURNISHING INACCURATE PARTICULARS OF INCOME IN RESPECT OF AMOUNT RECEIVED ON VOLUNTARY RETIREMENT. 3. THE ASSESSEE HAS FILED AN APPLICATION FOR WAIVER OF PENALTY U/S 273A OF THE INCOME-TAX ACT, 1961 BEFORE THE PRINCIPAL CO MMISSIONER OF INCOME-TAX-35, MUMBAI. THE PRINCIPAL COMMISSIONER OF INCOME-TAX, AFTER CONSIDERING RELEVANT FACTS STATED IN THE APPL ICATION FILED U/S 273A AND ON ANALYSIS OF PROVISIONS OF SECTION 10(10C) OB SERVED THAT AN EMPLOYEE, WHO RECEIVES AMOUNT UNDER THE VOLUNTARY SEPARATION / RETIREMENT SCHEME FROM A PUBLIC SECTOR ORGANISATION ONLY IS ELIGIBLE FOR 4 ITA 2880/MUM/2017 EXEMPTION BUT NOT THE ASSESSEE, WHO WAS IN EMPLOYME NT WITH A NON RESIDENT COMPANY. AS REGARDS RELIEF CLAIMED U/S 89 (1), THE PRINCIPAL COMMISSIONER OBSERVED THAT ONLY THOSE AMOUNT RECEIV ED IN THE FORM OF ARREARS OR ADVANCE OF SALARY ARE ELIGIBLE FOR RELIE F BUT NOT AMOUNT RECEIVED UNDER VOLUNTARY RETIREMENT SCHEME, THEREFO RE, HE REJECTED APPLICATION FILED U/S 273A FOR WAIVER OF PENALTY LE VIED U/S 271(1)(C) OF THE ACT. 4. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE LD .PCIT-35 HAS ERRED IN REJECTING APPLICATION FILED BY THE ASSESSE E U/S 273A FOR WAIVER OF PENALTY LEVIED U/S 271(1)(C) WITHOUT APPRECIATING T HE FACT THAT THE AO HAS LEVIED PENALTY FOR FURNISHING INACCURATE PARTICULAR S OF INCOME IN RESPECT OF A BONA FIDE CLAIM MADE BY THE ASSESSEE TOWARDS A MOUNT RECEIVED FROM VOLUNTARY RETIREMENT SCHEME U/S 10(10C) OF THE ACT. 5. ON THE OTHER HAND, THE LD.AR STRONGLY SUPPORTED THE ORDER OF THE PCIT. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS FILED APP EAL AGAINST ORDER PASSED BY THE PCIT U/S 273A OF THE INCOME-TAX ACT, 1961 AGAINST REJECTION OF APPLICATION FOR WAIVER OF PENALTY LEVI ED U/S 271(1)(C) OF THE ACT. WE FURTHER NOTICE THAT THE PROVISIONS OF SECT ION 253(1) DOES NOT PROVIDE FOR FILING OF APPEAL AGAINST ORDER PASSED B Y THE PCIT U/S 273A OF 5 ITA 2880/MUM/2017 THE INCOME-TAX ACT, 1961 REJECTING APPLICATION FOR WAIVER OF PENALTY U/S 271(1)(C) OF THE ACT. WE FURTHER NOTICE THAT THE P ROVISIONS OF SUB SECTION 5 OF SECTION 273A MAKE IT VERY CLEAR THAT EVERY ORD ER UNDER THIS SECTION SHALL BE FINAL AND CANNOT BE CALLED INTO QUESTION I N ANY COURT OR ANY OTHER AUTHORITY. WHEN THE LAW IS NOT PERMITTED TO FILE A PPEAL AGAINST ORDER U/S 273A BEFORE THE TRIBUNAL, THEN THERE IS NO SCOPE FO R THE ASSESEE TO FILE APPEAL AGAINST SUCH ORDER. THEREFORE, WE ARE OF TH E CONSIDERED VIEW THAT THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTA INABLE AND ACCORDINGLY, WE DISMISS APPEAL FILED BY THE ASSESSE E. HOWEVER, WE KEEP OPEN AN OPTION TO THE ASSESSEE TO CHALLENGE TH E ORDER PASSED BY THE PCIT U/S 273A OF THE INCOME-TAX ACT, 1961 IN AP PROPRIATE FORUM IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2018. SD/- SD/- (JOGINDER SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 10 TH OCTOBER, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT BY ORDER 5. DR /TRUE COPY/ SR.PS, ITAT, MUMBAI