ITO 6(1)(4), MUMBAI V. BROKEN HILLS INTERNATIONAL P./ LTD, MUMBAI

ITA 2946/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62530 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 31-05-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ MISHRA
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIVEK VARMA, JM ITA NO.2946/MUM/2010 : ASST. YEAR 2001-2002 THE INCOME TAX OFFICER WARD 6(1)(4) MUMBAI. M/S.BROKEN HILLS INTERNATIONAL PVT.LTD. PSL TOWERS, 615 MAKWANA ROAD ANDHERI (EAST), MUMBAI 400 059. PAN : AABCB4567H. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI MANOJ MISHRA RESPONDENT BY : SHRI VIJAY MEHTA DATE OF HEARING : 31.05.2012 DATE OF PRONOUNCEMENT : 06.06.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE LEARNED CIT(A) ON 18.01.2010 DELETING THE PENALTY OF ` 15 LAKH IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT, IN RELA TION TO THE ASSESSMENT YEAR 2001-2002. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE FILED RETURN DECLARING TOTAL INCOME OF ` 20.96 LAKH. THE ASSESSEE CLAIMED LEASE RENTAL AS BUSINESS INCOME, WHICH WAS TREATED BY THE A.O. AS INCOME FROM OTHER SOURCES. DUE TO CHANGE OF HEAD OF INCOME, CERTAIN EXPENSES WHICH WERE CLAIMED BY THE ASSESSEE, CAME TO BE DISALLOWED TO T HE TUNE OF ` 37.93 LAKH. THEREAFTER, THE A.O. IMPOSED PENALTY WHICH CAME TO BE DELETED BY THE LEARNED FIRST APPELLATE AUTHORITY. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS OBSERVED THAT THE ONLY BAS IS FOR IMPOSING THE PENALTY U/S 271(1)(C) HAS BEEN THE CHANGE OF HEAD OF LEASE RENT AL FROM BUSINESS INCOME TO INCOME FROM OTHER SOURCES THEREBY RESULTING INTO DISALLOWANCE OF CERTAIN ITA NO.2946/MUM/2010 M/S.BROKEN HILLS INTERNATIONAL PRIVATE LIMITED. 2 EXPENSES. THERE CAN BE NO DENIAL THAT THE ASSESSEE CLAIMED LEASE RENTAL AS `BUSINESS INCOME BY MAKING A PROPER DISCLOSURE IN THIS REGARD. THE MERE FACT THAT THE ASSESSING OFFICER DID NOT ACCEPT THE HEAD UNDER WHICH THE ASSESSEE PLACED THE INCOME, CANNOT PER SE LED TO THE IMPOSITION OF PENALTY U/S 271(1)(C). WE ARE UNABLE TO FIND ANY REASON TO HOLD THE CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME ON T HE SIMPLE REASON OF CHANGE IN THE HEAD OF THE INCOME FROM THE ONE UNDER WHICH IT WAS DECLARED BY THE ASSESSEE. THE HONBLE SUPREME COURT IN CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. [(2010) 322 ITR 158 (SC)] HAS HELD THAT SIMPLY FOR THE REASON THAT THE ASSESSING OFFICER DID NOT FIND THE CLAIM OF THE ASS ESSEE TO BE SUSTAINABLE IN LAW UP TO A CERTAIN EXTENT, IT CAN NOT BE A CASE FOR PENALTY U/S.271(1)(C) MORE SO WHEN THE PARTICULARS FURNISHED BY THE ASSESSEE WERE NOT INAC CURATE. THE FACTS OF OUR CASE ARE SIMILAR INASMUCH AS THE ASSESSEE DECLARED THE LEASE RENTAL UNDER THE HEAD `BUSINESS INCOME INSTEAD OF `INCOME FROM OTHER SOURCES. THE LD. AR HAS STATED THAT THE ASSESSING OFFICER INITIATED PENALTY U/S 271(1)(C) I N SUBSEQUENT YEARS ON THE SAME ISSUE WHICH WAS SUBSEQUENTLY DROPPED. THIS CONTENTI ON OF THE LEARNED AR REMAINED UNCONTROVERTED BY THE LEARNED DEPARTMENTAL REPRESEN TATIVE. IN VIEW OF THE FOREGOING REASONS, WE ARE SATISFIED THAT THE LEARNED CIT(A) W AS JUSTIFIED IN DELETING THE PENALTY. WE, THEREFORE, UPHOLD THE IMPUGNED ORDER. 4. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 06 TH DAY OF JUNE, 2012. SD/- SD/- (VIVEK VARMA) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 06 TH JUNE, 2012. DEVDAS* ITA NO.2946/MUM/2010 M/S.BROKEN HILLS INTERNATIONAL PRIVATE LIMITED. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-XIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.