VIJAY C. JASWA, MUMBAI V. ASST CIT RG 25(3), MUMBAI

ITA 313/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3462 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKASH AGARWAL
• Assessee Lawyers: PANKAJ M PARIKH
• Keywords: Bonafide belief; Source of fund; Onus to prove; Revised return; Bonafide mistake; Ignorance of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ./ I.T.A. NO. 313/MUM/2014 ( / ASSESSMENT YEAR: 2009-10) VIJAY C. JASWA 28, PATANWALA BUNGALOW S.V. ROAD, KANDIVALI (WEST) MUMBAI-400 067. / VS. THE ASSISTANT COMMISIONER OF INCOME TAX, RANGE 25(3), R.NO:308 III FLOOR, BANDRA KURLA COMPLEX, PRATYAKSHA KAR BHAVAN, BANDRA EAST, MUMBAI-400 051. ./ ./PAN/GIR NO. ACQPJ 2604M ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PANKAJ M. PARIKH / RESPONDENT BY : SHRI VIKASH AGARWAL / DATE OF HEARING : 23/02/2016 !'# / DATE OF PRONOUNCEMENT : 18/03/2016 $% / O R D E R PER SANDEEP GOSAIN, J. M.: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 35, DATED 18. 10.2013 FOR A.Y. 2009-10 ON THE FOLLOWING GROUNDS OF APPEAL. 2 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT- (A)-3, MUMBAI HAS ERRED IN CONFIRMING THE PENALTY L EVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 BY THE ASSESS ING OFFICER-RANGE 25(3), MUMBAI WITHOUT APPRECIATING THE FACTS AND THE WRITT EN SUBMISSION MADE DURING THE COURSE OF THE PENALTY PROCEEDINGS. 2. YOUR APPELLANT CRAVES TO LEAVE, TO ADD, TO MODIFY O R DELETE THE ABOVE GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSSEE H AD FILED HIS RETURN OF INCOME ON 31.08.2009 WHEREIN THE ASSESSEE HAD DECLARED HIS INCOME AT RS.61,88,188/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE IT ACT AND S ELECTED FOR SCRUTINY BY CASS. CONSEQUENTLY THE ASSESSMENT IN THE CASE OF THE ASSE SSEE WAS COMPLETED U/S 143(3) OF THE I.T. ACT,1961 ON 23.09.2011. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY THE AO THAT THE ASSESSEE HAD SHOWN INCOME FROM THE PROFESSION OF CONSULTANCY TO THE TUNE OF RS.14,62,000/- HOWEVER A S PER THE AIR INFORMATION, INCOME UNDER THIS HEAD RECEIVED BY THE ASSESSEE WAS FOUND TO BE OF RS.15,65,336/-. SIMILARLY, THE INTEREST INCOME RECEIVED BY THE ASSE SSEE FROM THE BANK AS PER AIR WAS RS.75,190/- WHICH WAS NOT OFFERED FOR TAXATION AND CONSEQUENTLY AFTER SEEKING REPLY FROM THE ASSESSEE, THE ORDER OF PENALTY U/S 2 71(1)(C) OF THE I.T. ACT,1961 WAS PASSED. 3 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT 3. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE OF THE AS SESSEE HAD DISMISSED THE APPEAL VIDE ITS ORDER DATED 18.10.13. 3.1 AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. GROUND NO. 1 4. AT THE VERY OUTSET LD. AR REPRESENTING THE ASSES SEE SUBMITTED THAT ASSESSEE HAD FILED HIS RETURN OF INCOME ON 31.08.2009. THE A SSESSEE WAS NON RESIDENT INDIAN (NRI) TILL FINANCIAL YEAR 2005-06. HE RETURN ED TO INDIA PERMANENTLY IN THE FINANCIAL YEAR 2006-07 AFTER STAYING IN THE UNITED STATES OF AMERICA FOR OVER 30 YEARS. THE STATEMENT OF TOTAL INCOME AND ACKNOWLEDG EMENT OF RETURN OF INCOME FOR FINANCIAL YEAR 2005-06 (AY 2006-07) AS NON RESIDENT WAS ENCLOSED. IT WAS SUBMITTED THAT THE APPELLANT IS A TECHNICALLY QUALI FIED PERSON AND HAS DONE HIS PHD IN COMPUTERS AND CONTROLS. THE ASSESSEE MISSED OUT ON THE DISCLOSURE OF INCOME AS HE IS NOT CONVERSANT WITH THE INDIAN ACCOUNTING RUL ES AND INDIAN TAX LAWS. THE ASSESSEE WAS UNDER BONAFIDE BELIEF AS CONSULTANCY I NCOME AMOUNTING TO RS.1,03,336/- REMAINED TO BE INCLUDED IN THE INCOME AS THE PARTY (HAL EDGEWOOD 4 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT TECHNOLOGIES PRIVATE LTD) DID NOT DEDUCT INCOME TAX AT SOURCE FROM THE PAYMENT MADE TO THE ASSESEE. IT WAS SUBMITTED THAT THE GENU INE ERROR CANNOT BE TREATED AS CONCEALMENT OF INCOME. IT WAS FURTHER SUBMITTED BY THE ASSESEE THAT THE AMOUNT OF INTEREST INCOME OF RS.75,190/- ON FIXED DEPOSITS WI TH THE BANK COULD NOT BE SHOWN AS INCOME AND THE SAME WAS MISSED OUT OWING TO HDFC BANK WHICH DID NOT CARE TO COURIER THE CERTIFICATE OF INTEREST AND TAX DEDU CTED AT SOURCE. 4.1 LASTLY, IT WAS SUBMITTED THAT THERE WAS NO INTE NTIONAL CONCEALMENT ON THE PART OF THE ASSESSEE AND IN SUPPORT OF HIS CONTENTI ON THE ASSESSEE RELY UPON THE FOLLOWING JUDGEMENTS: 1. PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT [KO LKATA (SC)] 2. CIT VS. MS. SANIA MIRZA (ANDHRA PRADESH HC) 3. CIT VS. M/S. BENNETT COLEMAN & CO. LTD (BOMBAY HC) 4. THE CIT VS. SOMANY EVERGREE KNITS LTD (BOMBAY HC), 5. DY. CIT VS. SHRI SURAJ SINGH (ITAT LUCKNOW BEN CH). 4.2 ON THE OTHER HAND, LD. DR REPRESENTING THE REVE NUE RELIED UPON THE ORDERS PASSED BY LOWER AUTHORITIES AND SUBMITTED THAT THER E WAS A INTENTIONAL CONCEALMENT ON THE PART OF THE ASSESSEE AND THEREFORE SUPPORTED THE ORDERS PASSED BY LOWER AUTHORITIES. 5 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT 5. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE LOWER AUTHORITIES. WE HAVE NOTICED THAT AT THE TIME OF PASSING PENALTY ORDER U/S 271(1)(C) OF THE I.T. ACT,1961 THE AO HAD PROVIDE OPPORTUNITY TO THE ASSE SSEE BY ISSUING NOTICES U/S 274 R.W.S. 271(1)(C) OF THE I.T. ACT AND IN RESPONS E TO THE PENALTY NOTICE THE ASSESSEE DID NOT SUBMIT ANY EXPLANATION, RATHER THE AR HAD ACCEPTED THESE CONCEALED INCOME DURING THE COURSE OF ASSESSMENT P ROCEEDING. IN THE PRESENT CASE, THE FACT WAS DISCLOSED BY AIR INFORMATION WHICH PRO VES THAT THE ASSESSEEE CONCEALED THESE MUCH OF RECEIPTS DELIBERATELY WHICH COULD HAVE BEEN UN-NOTICED IN CASE THE CASE WAS NOT SELECTED FOR SCRUTINY. 5.1 WE HAVE CONSIDERED THE CONTENTIONS RAISED BY TH E ASSESSEE TO THE EFFECT THAT THE AMOUNT OF RS.1,03,336/- REGARDING CONCEALMENT OF INCOME WAS MISSED OUT AS ASSESSEE WAS NOT CONVERSANT WITH THE INDIAN ACCOUNT ING RULES AND INDIAN TAX LAWS. AND THE AMOUNT OF INTEREST INCOME OF RS.75,190/- ON FIXED DEPOSITS WITH BANK WAS ALSO MISSED OUT OWING TO HDFC BANK WHICH DID NOT CA RE TO COURIER THE CERTIFICATE OF INTEREST AND TAX DEDUCTED AT SOURCE. IN THIS RES PECT, WE WOULD LIKE TO MENTION THAT IGNORANCE OF LAW IS NOT AN EXCUSE AND IT WAS B OUNDED DUTY OF THE ASSESSEE TO DISCLOSE AFORE MENTIONED FACTS AT THE TIME OF FILIN G RETURN BEFORE THE INCOME TAX 6 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT AUTHORITIES. ALTHOUGH THE ASSESSEE RELIED UPON THE JUDGEMENTS BUT THE FACTS OF ALL THE CASES ARE DISTINGUISHABLE AND ARE NOT SIMILAR T O THE FACTS OF THE PRESENT CASE FOR EXAMPLE IN THE CASE OF PRICE WATERHOUSE COOPERS PV T LTD. VS. CIT, KOLKATA (SC) (SUPRA) IT HAS BEEN CATEGORICALLY MENTIONED THAT AS PER THE FACTS OF THAT CASE THE ASSESSEE HAD FILED REVISED RETURN ON THE SAME DATE OF COMING TO KNOW THE DEFECT AND THE REASSESSMENT WAS PASSED ON THE SAME DATE AN D THE ASSESSEE PAID TAX DUE AS WELL AS INTEREST THEREON. THEREFORE, IT WAS HELD TH AT MISTAKE ON THE PART OF THE ASESSEE IN THAT CASE WAS INADVERTENT BUT THE FACT O F THE PRESENT CASE ARE DIFFERENT. IN THE PRESENT CASE THE ASSESSEE HAD MADE EXCUSE ON TH E GROUND THAT HE WAS NOT ACQUAINTED WITH THE TAX LAWS IN INDIA AND HE HAD NO T RECEIVED ANY INTIMATION FROM THE BANK REGARDING THE INTEREST INCOME. 5.2 WE HAVE NOTICED THAT ALTHOUGH THE ASSESSEE HAS SHOWN INCOME FROM THE PROFESSION OF CONSULTANCY TO THE TUNE OF RS.14,62,0 00/- HOWEVER, AS PER AIR INFORMATION INCOME UNDER THIS HEAD WAS FOUND TO BE RS.15,65,336 /- WHICH SHOWS THAT THERE WAS DELIBERATELY AND INTENTIONAL CONCEAL MENT ON THE PART OF THE ASESSEE AND SIMILARLY, THE INTEREST INCOME RECEIVED BY THE ASSESSEE AS PER AIR WAS RS.75,190/- WHICH WAS NOT OFFERED FOR TAXATION ALTH OUGH IT WAS THE ASSESSEE HIMSELF WHO HAS KEPT THE DEPOSITS IN HIS BANK, IT CANNOT BE HELD THAT THERE WAS BONAFIDE MISTAKE ON THE PART OF THE ASSESSEE. THE CIT(A) ALS O WHILE DECIDING THE ISSUE HAS 7 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT CATEGORICALLY MENTIONED THAT THERE IS NO DOUBT THAT THE ASSESSEE DID NOT DISCLOSE DIFFERENT SOURCES OF INCOME WHICH COME TO THE NOTIC E OF AO THROUGH AIR INFORMATION AND IN THE FACTS OF THE PRESENT CASE TH E ASESSEE HAD NOT BROUGHT ANY FACTS OR EXPLANATION BEFORE US IN ORDER TO SHOW THA T THERE WAS SOME BONAFIDE MISTAKE ON THE PART OF THE ASSESSE TO CONCEAL THE S AID INCOME. SINCE, THE ASSESSEE FAILED TO DISCHARGE HIS BASIC ONUS TO PROVE BEFORE US OR BEFORE THE REVENUE AUTHORITIES THAT THE MISTAKE ON THE PART OF ASSESSE E WAS BONAFIDE AND THEREFORE NOT REFLECTED THE SAID INCOME IN THE RETURN OF INCOME. THEREFORE, THE CIT(A) HAS RIGHTLY UPHELD THE ORDER IMPOSING PENALTY U/S 271(1)(C) PAS SED BY AO. HENCE, WE SEE NO REASONS TO INTERFERE OR DEVIATE FROM THE FINDINGS R ECORDED AND ORDERS PASSED BY THE CIT(A) AND HENCE THIS GROUND OF APPEAL RAISED BY AS SESSEE STANDS DISMISSED AND THE ORDERS PASSED BY CIT(A) ARE UPHELD. THEREFORE, WE DISMISS THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2016 SD/- SD/- (JASON P BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :18.03.2016 PS. ASHWINI 8 ITA NO. 313/MUM/2014 (A.Y. 2009-10) VIJAY C. JASWA VS. ACIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI