RAJENDRA PRADHAN, MUMBAI V. ITO 26(2)(4), MUMBAI

ITA 2933/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7846 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 13-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: ASHOK A PRADHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NOS.2933, 2934 & 2935/MUM/2010 (ASSESSMENT YEARS: 2002-03, 2003-04 & 2004-05) SHRI RAJENDRA PRADHAN INCOME TAX OFFICER - 26(20(4) B-15, RAJAT REKHA, SEVEN SALARY CIRCLE, MITTAL HOSP ITAL BLDG. BUNGALOWS, J.P. ROAD VS. CHARNI ROAD, MUMBAI 400002 ANDHERI (W), MUMBAI 400053 PAN - AACPP 0494 K APPELLANT RESPONDENT APPELLANT BY: SHRI ASHOK A. PRADHAN RESPONDENT BY: SHRI JITENDRA YADAV O R D E R PER B. RAMAKOTAIAH, A.M. THESE THREE APPEALS, FILED AT THE INSTANCE OF THE A SSESSEE, ARE DIRECTED AGAINST THE ORDERS DATED 16-02-2010 PASSED BY THE C IT(A)-XXVIII, MUMBAI AND THEY PERTAIN TO THE ASSESSMENT YEARS 2002-03, 2 003-04 AND 2004-05. 2. THE ISSUE IN THIS WAS ABOUT NON INCLUSION OF LEA SE RENT RECEIVED ALONG WITH THE MAINTENANCE CHARGES ON HOUSE WHICH WAS SEL F LEASED TO THE COMPANY. IT WAS THE STAND OF THE ASSESSEE THAT THE AMOUNT WAS INCLUDED AS PERQUISITE BY THE COMPANY BUT AO MADE A SEPARATE AD DITION AND LEVIED PENALTY IN ALL THESE YEARS. THE CIT(A) DISMISSED T HE APPEALS AS THERE WAS DELAY OF FILING APPEAL BY 12 DAYS AND THE CONDONATI ON SOUGHT WAS REFUSED. THESE PENALTIES WERE CHALLENGED BEFORE US ON THE GR OUND THAT THERE WAS NO WILFUL INTENTION TO CONCEAL THE INCOME AND THUS PEN ALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE AC T IS LIABLE TO BE CANCELLED AND CIT(A) ERRED IN NOT CONDONING THE DELAY. LEARNE D COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, SUBMITTED THAT THE ITAT, MU MBAI BENCHES IN THE FOLLOWING CASES HAVE CONSISTENTLY TAKEN A STAND THA T PENALTY IS NOT IMPOSABLE UNDER SECTION 271(1)(C) OF THE ACT IN THE PECULIAR CIRCUMSTANCES IN WHICH EMPLOYEES OF BHARAT PETROLEUM CORPORATION ARE PLACED : ITA NOS.2933, 2934 & 2935/MUM/2010 SHRI RAJENDRA PRADHAN 2 1. MR. MANGHAL GAONKAR & OTHERS. VS. ITO ITA. NO. 5879/MUM/2009. A BENCH 2. SHRI RAVINDRA L. SATHE VS. ITO ITA.NO. 2828/MUM/200 8 D BENCH 3. SMT. VERONICA J.CORREIA VS. ITO ITA.NO. 5986, 5987 & 5988/MUM/2009 4. SHRI ADRIN J.AUGUSTINE VS. ITO ITA. NO. 1922 TO 1924/MUM/2010 A BENCH 5. MR. KESHAVAN P. PILLAY VS. ITO ITA. NO. 1595/MUM/20 10 A BENCH 6. MR. VIKRAM BHIVAJI ZUMBRE VS. ITO ITA. NO. 2368/MUM /2010 F BENCH 7. WINSTON I. RODRIGUES VS. ITO ITA. NO. 1606. 1572 AN D 1574/MUM/2010 G BENCH 8. SHALESH R.PRAJAPATI VS. ITO ITA. NO. 1708/MUM/2010 D BENCH. 9. MR. DILIP N. PHATAK ITA. NO. 1931/MUM/2010 AND MR. RAJESH V. GAD ITA. NO. 1932/MUM/2010 D BENCH. 10. MR. CHANDRAKANT K. MAHADKAR ITA. NO. 1918 TO 1921/MUM/2010 C BENCH 3. IT WAS STATED THAT DUE TO RAINS IN THE CITY ASS ESSEE COULD NOT PREFER APPEALS IN TIME AND IN SUPPORT STATED THAT APPEAL FEES WAS PAID BEFORE THE DUE DATE. WE ARE OF THE OPINION THAT CIT(A) SHOULD HAVE CONDONED THE SMALL DELAY IN FILING THE APPEALS AS THE CONTENTIONS ARE BONAFIDE AND THE ASSESSEE HAVING A STRONG CASE ON MERITS, JUSTIFIES LIBERAL A PPROACH AND DEMANDS ADMISSION OF THE APPEALS BY CONDONING THE DELAY RAT HER THAN GOING BY THE TECHNICALITIES, AS STATED BY THE HONBLE SUPREME CO URT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTH ERS (1987) 167 ITR 471 (S.C). 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORD ERS PASSED BY THE TAX AUTHORITIES. ITA NOS.2933, 2934 & 2935/MUM/2010 SHRI RAJENDRA PRADHAN 3 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RECORD. HAVING REGARD TO THE CIRCUMSTANCES OF THE C ASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENT CAUSE FOR THE DELA Y IN FILING THE APPEALS BEFORE THE CIT(A). EVEN THOUGH THE CIT(A) HAS NOT A DJUDICATED ON MERITS, CONSIDERING THE FACTS WE DECIDE THE APPEALS ON MERI T. AS REGARDS THE LEVY OF PENALTY, IT IS NOTICED THAT UNDER IDENTICAL CIRCUMS TANCES THE ITAT, MUMBAI BENCHES HAVE CONSISTENTLY TAKEN A STAND THAT UNDER THE CIRCUMSTANCES IT CANNOT BE SAID TO BE A CASE OF WILFUL CONCEALMENT O F INCOME AND ACCORDINGLY, CANCELLED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE HOLD THAT IT IS NOT A FIT CA SE FOR LEVY OF PENALTY. THEREFORE, WE CANCEL THE PENALTY OF ` 9,465/- (A.Y. 2002-03), ` 16,006/- (A.Y. 2003-04) AND ` 16.106/- (A.Y. 2004-05). 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH 2011. SD/- SD/- (N.V. VASUDEVAN) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXVIII, MUMBAI 4. THE CIT XXVI, MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.