RAJIV GANPAT RACKVI (HUF), VASAI V. ITO WD 4(3), MUMBAI

ITA 2927/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2847 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN
• Assessee Lawyers: NIKHIL RAJADHYAKSHA
• Keywords: Business income; Revised return
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 2927/MUM/2016 : A.Y : 2010 - 11 RAJIV GANPAT RACKVI (HUF) 303, GARDEN VIEW APARTMENT, BABAN VAIDYA ROAD, TAMTALAO, VASAI 401 201. (APPELLANT) PAN : AABHR4101C VS. ITO, WARD - 4(3), THANE. (RESPONDENT) APPELLANT BY : SHRI NIKHIL RAJADHYAKSHA RESPONDENT BY : SHRI J. SARAVANAN DATE OF HEARING : 03/10/2018 DATE OF PRONOUNCEMENT : 31 /10/2018 O R D E R PER G.S. PANNU , VP : THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2010 - 11 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A) - 3, THANE DATED 13.01.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28.06.2013. 2. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAINST THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT FOR HAVING FURNISHED INACCUR ATE PARTICULARS OF INCOME. 2 ITA NO. 2927/MUM/2016 RAJIV GANPAT RACKVI (HUF) 3. EXPLAINING THE CIRCUMSTANCES IN WHICH THE PENALTY HAS BEEN LEVIED, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT WHEN ASSESSEE FILED THE ORIGINAL RETURN ON 26.07.2010, THE TOTAL INCOME DECLARED WAS RS.8,29,191/ - . IN THE SAID RETURN, ASSESSEE HAD CLAIMED DEDUCTION U/S 35(1)(II) OF THE ACT WITH RESPECT TO AN AMOUNT OF RS.6,40,000/ - DONATED TO ONE, BHARTIYA SANSKRITI DARSHAN TRUST. THE ASSESSEE EXPLAINED THAT THE DEDUCTION WAS CLAIMED TO THE EXTENT OF 125% U/S 35( 1)(II) OF THE ACT FOR RS.8,00,000/ - . REALISING ITS MISTAKE, SINCE ASSESSEE WAS NOT HAVING BUSINESS INCOME, A REVISED RETURN WAS FILED WHEREBY THE CLAIM WAS SCALED DOWN TO RS.6,40,000/ - , AND THAT TOO, U/S 80G OF THE ACT. THE LEARNED REPRESENTATIVE EXPLAIN ED THAT THIS REVISION WAS CARRIED OUT BY FILING A REVISED RETURN ON 05.05.2011 AND THE RESULTANT TAX WAS ALSO PAID. THE LEARNED REPRESENTATIVE EXPLAINED THAT IN THE ASSESSMENT PROCEEDINGS THE SAID DEDUCTION WAS DISALLOWED BY NOTICING THAT IT WAS PAID ON 3 0.03.2010 AND THE CHEQUE WAS ULTIMATELY CLEARED IN THE SUBSEQUENT YEAR. THE LEARNED REPRESENTATIVE EXPLAINED THAT IN THE QUANTUM PROCEEDINGS ASSESSEE DID NOT AGITATE THE MATTER AND THAT, SO FAR AS THE NEXT YEAR IS CONCERNED, ASSESSEE FILED A REVISED RETUR N AND CLAIMED SUCH DEDUCTION U/S 80GGA OF THE ACT, WHICH HAS SINCE BEEN ALLOWED BY THE DEPARTMENT ALSO. 4. IN THIS BACKGROUND, THE LEARNED REPRESENTATIVE EXPLAINED THAT THERE WAS NO FURNISHING OF INACCURATE PARTICULARS OF INCOME SO AS TO INVITE THE PENA L PROVISIONS U/S 271(1)(C) OF THE ACT. OUR ATTENTION HAS ALSO BEEN INVITED TO PAGE 74 OF THE PAPER BOOK WHEREIN IS PLACED A COPY OF THE RECEIPT ISSUED BY BHARTIYA SANSKRITI DARSHAN TRUST, THE DONEE, WHICH IS DATED 30.03.2010. 3 ITA NO. 2927/MUM/2016 RAJIV GANPAT RACKVI (HUF) 5. ON THE OTHER HAND, THE LD . DR APPEARING FOR THE REVENUE CONTENDED THAT THE CLAIM MADE BY THE ASSESSEE IN THE RETURN @ 125% INSTEAD OF 100% BY WRONGLY RELYING ON SEC. 35(1)(II) OF THE ACT DOES RENDER THE ASSESSEE LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT. 6. WE HAVE CAREFULLY CO NSIDERED THE RIVAL SUBMISSIONS. FACTUALLY SPEAKING, IT IS QUITE EVIDENT THAT SO FAR AS THE BONA FIDE OF THE DONATION MADE BY THE ASSESSEE OF RS.6,40,000/ - IS CONCERNED, THE SAME HAS NOT BEEN DISPUTED. IN FACT, SUCH DONATION HAS BEEN ALLOWED AS A DEDUCTION IN TERMS OF SEC. 80GGA IN THE SUBSEQUENT YEAR. BE THAT AS IT MAY, MERELY BECAUSE THE CLAIM WAS MADE UNDER A WRONG SECTION, BUT WHICH WAS OTHERWISE BONA FIDE, ASSESSEE CANNOT BE SUBJECTED TO PENALTY U/S 271(1)(C) OF THE ACT. THEREFORE, IN OUR VIEW, IT IS NOT A CASE WHERE ASSESSEE CAN BE FAULTED FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT QUA THE CLAIM MADE ON ACCOUNT OF DONATION PAID TO BHARTIYA SANSKRITI DARSHAN TRUST OF RS.6,40,000/ - . WE, THEREFORE, SET - ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSI NG OFFICER TO DELETE THE PENALTY OF RS.2,56,220/ - LEVIED U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 S T OCTOBER, 2018. SD/ - SD/ - ( RAM LAL NEGI ) JUDICIAL MEMBER (G.S. PANNU) VICE PRESIDENT MUMBAI, DATE : 3 1 S T OCTOBER, 201 8 * SSL * 4 ITA NO. 2927/MUM/2016 RAJIV GANPAT RACKVI (HUF) COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, D BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI