KASHINATH VITHAL WAYAL, PUNE V. ITO 26(1)3), MUMBAI

ITA 3207/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6788 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 30-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 23-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Section: 142(1); 133(6); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) ITA NO.3207,3208 AND 3212/MUM/2010 (ASSESSMENT YEARS: 2002-03, 2003-04 AND 2004-05) KASHINATH VITHAL WAYAL, G-43, GIRIKUNJ CHAL. SECTOR-8, CBD-BELAPUR, NAVI MUMBAI-400614, PAN: AAAPW4286E INCOME TAX OFFICER 26(1)(3), MUMBAI-400002 APPELLANT V/S RESPONDENT APPELLANT BY : SHRI PRAKA SH PANDIT RESPONDENT BY : SHRI C.G.K.NA IR. O R D E R PER D.K.AGARWAL (JM) ALL THESE APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 25.9.20 09 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) FOR T HE ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05. SI NCE FACTS ARE IDENTICAL AND ISSUE INVOLVED IS COMMON, A LL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVEYANCE. ITA NO.3207/MUM/2010 (AY: 2002-03) 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS AN EMPLOYEE OF BHARAT PETROLEUM CORPORATION LTD. (BPCL). IT WAS INTERALIA OBSERVED BY THE AO THAT THE ASSE SSEE FILED ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 2 RETURN OF INCOME AS PER TDS SALARY CERTIFICATE IN FORM NO.16 AND DID NOT DISCLOSE THE LEASE RENT AND MAINT ENANCE CHARGES RECEIVED DURING THE RELEVANT PREVIOUS YEAR . THE AO FURTHER OBSERVED THAT THE ASSESSEE, ON THE OTHER HAND, CLAIMED INTEREST PAID ON LOAN TAKEN FOR ACQUISITION OF HOUSE PROPERTY AS SOP AND HAS SHOWN LOSS UNDER THE HEAD HOUSE PROPERTY. THE AO AFTER RECORDING THE REASONS ISSUE D NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 (THE ACT). IN RESPONSE, THE ASSESSEE NEITHER FILED ANY RETURN NOR MADE COMPLIANCE OF THE NOTICE ISSUED UNDER SECTION 143(2 ) AND 142(1) OF THE ACT. ACCORDINGLY, THE AO ON THE BAS IS OF INFORMATION CALLED FOR UNDER SECTION 133(6) OF THE ACT FROM BPCL WHEREIN THE BPCL HAS FORWARDED THE DETAILS OF LEASE RENT OF RS.28,800/- AND REIMBURSEMENT OF ANNUAL MAINTENANCE CHARGES OF RS.12,960/- CHARGED BY THE ASSESSEE, COMPLETED THE ASSESSMENT AT AN INCOME OF RS.6,33,120/- VIDE ORDER DATED 20.12.2007 PASSED UN DER SECTION 144 R.W. SECTION 147 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ALSO INITIATED P ENALTY PROCEEDINGS UNDER SECTION 271(1)(C ) OF THE ACT. IN RESPONSE, TO THE NOTICE ISSUED TO SHOW CAUSE AS TO WHY THE PENALTY UNDER SECTION 271(1)(C ) SHOULD NOT BE IMP OSED, THE ASSESSEE SUBMITTED HIS REPLY AND OBJECTED TO THE I MPOSITION OF THE PENALTY UNDER SECTION 271(1)( C ) OF THE ACT. HOWEVER, ACCORDING TO THE AO THE EXPLANATION SUBMI TTED BY ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 3 THE ASSESSEE IS NOT SATISFACTORY. THE AO ON THE BA SIS OF THE ADDITION MADE IN THE ASSESSMENT ORDER HELD THAT THE ASSESSEE HAS CONCEALED THE INCOME OF RS.33,120/- (N ET INCOME FROM HOUSE PROPERTY RS.20,160 + INCOME FR OM OTHER SOURCES I.E. RECEIPT OF REIMBURSEMENT OF A NNUAL MAINTENANCE CHARGES OF RS.12,960/-) AND ACCORDINGLY HE IMPOSED THE PENALTY OF RS.10,134/- VIDE ORDER DAT ED 24.6.2008 PASSED UNDER SECTION 271(1)(C ) OF THE ACT. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE AGREEING WITH THE VIEWS OF THE AO AND IN RELYIN G ON THE DECISION OF THE HONBLE SUPREME COURT IN UNION OF I NDIA AND ORS V/S DHARMENDRA TEXTILES PROCESSORS AND OTHERS (295 ITR 244 (SC) CONFIRMED THE PENALTY IMPOSED BY THE AO. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE ASSESSEE IS I N APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTE NANCE OF THE PENALTY IMPOSED BY THE AO UNDER SECTION 271(1)( C ) OF THE ACT. 4. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE IMPUGNED ISSUE IS SQUARE LY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS: S.NO . ITA NO. CASE TITLE A.Y DATE OF ORDER 1. 2828/MUM/2008 SHRI RAVINDRA LAXMAN SATHE V/S ITO 2001-02 22.12.2009 ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 4 2. 5986 TO 5988 / MUM/2009 SMT.VERONICA J.CORREIA V/S ITO 2002-03 TO 2004-05 30.6.2010 3. 1922 TO 1925 /MUM/2010 SHRI ADRIAN J AUGUSTINE V/S ITO 2001-02 TO 2004-05 7.1.2011 4. 1595/MUM/2010 MR.KESHAVAN P.PILLAY V/S ITO 2003-04 12.1.2011 5. 1606 , 1572 & 1574/MUM/2010 WINSTON I RODRIGUES V/S ITO 2001-02, 2002-03 & 2004-05 7.1.2011 6. 1708/MUM/2010 SHAILESH R PRAJAPATI V/S ITO 2003-04 28.1.2011 7. 1931/MUM/2010 & 1932/MUM/2010 MR.DILIP NARAYAN PATHAK & OTHERS V/S ITO 2002-03 18.2.2011 8. 1918 TO 1921 /MUM/2010 CHANDRAKANT K. MAHADKAR V/S ITO 2001-02 TO 2004-05 11.2.2011 HE ALSO PLACED ON RECORD THE COPY OF THE ORDERS AS MENTIONED ABOVE. HE THEREFORE, SUBMITS THAT THE PE NALTY IMPOSED BY THE AO AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) BE DELETED. 5. ON THE OTHER HAND, THE LEARNED D.R. SUPPORTS TH E ORDER OF THE OF THE AO AND THE LEARNED COMMISSIONER OF I NCOME TAX (A). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FO R THE ASSESSEE THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE CONSISTENT VIEW OF ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 5 THE CO-ORDINATE BENCHES OF THE TRIBUNAL, WHEREIN IT HAS BEEN HELD THAT ON THE FACTS AND CIRCUMSTANCES OF TH E CASE, THERE IS NO CONCEALMENT ON THE PART OF THE ASSESSEE . IN THE CASE OF SUNIL MADHUKAR JOSHI VS. ITO IN ITA NO.2829/MUM/2008 FOR A.Y. 2001-02 ORDER DATED 1.02. 2010 IN WHICH ONE OF US (JM) WAS A PARTY WHEREIN IT HAS BEEN HELD VIDE PARA 6 OF THE ORDER AS UNDER :- 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE TRIB UNAL IN THE CASE OF SHRI RAVINDRA LAXMAN SATHE(SUPRA), ON T HE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE, HAS DE LETED THE PENALTY VIDE FINDING RECORDED IN PARA 4.2 OF IT S ORDER DATED 22.12.2009 WHICH IS REPRODUCED AS UNDER : 4.2 ON CONSIDERATION OF ABOVE DISCUSSION AND RATIO LAID DOWN BY THE ITAT IN THE SAID CASE CITED SUPRA, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CAS E FOR LEVY OF PENALTY U/S 271(1)(C). FROM THE ABOVE CIRCU LAR, IT IS CLEAR THAT IN THE CASE UNDER CONSIDERATION, T HE AO HAS DISCHARGED HIS DUTY OF ASSESSING CORRECT INCOME ON THE BASIS OF PARTICULARS AVAILABLE WITH THE DEPARTMENT WHICH MAY BE BY ISSUING NOTICE U/S 148 O F THE ACT. THE ASSESSEE CLAIMED THE INTEREST ON BORROWED CAPITAL AGAINST SOP INCOME AND OTHERS WHETHER THE SAME IS ALLOWABLE OR NOT OR WHAT SHOULD BE THE CORRECT INCOME IN ACCORDANCE WITH THE ACT IS A DIFFERENT THING BUT CERTAINLY RELEVANT SUFFICIENT PARTICULARS WERE ON RECORD, EITHER IN THE FILE OF ASSESSEE, FORM 16 OR IN THE FILE OF BPCL. THE AO MU ST HAVE CONSIDERED THE RELEVANT SCHEME AND ALL MATERIA L IN ASSESSMENT OF BPCL. UNDER THE PECULIAR CIRCUMSTANCES, SUCH CONSIDERATION OF PARTICULARS IN THE CASE OF BPCL AMOUNTS PARTICULARS AVAILABLE ON RECORD IN CASES OF THE EMPLOYEES OF BPCL. THEREFORE SUCH CASES CANNOT BE SAID TO BE A CASE OF FURNISHIN G INACCURATE PARTICULARS OR INCOME OR CONCEALING OF A NY PARTICULARS OF INCOME PARTICULARLY WHEN ALL THE REL EVANT PARTICULARS/MATERIAL AVAILABLE WITH THE DEPARTMENT. FURTHER, IT HAS BEEN NOTICED FROM PENALTY ORDER THA T THE AO NOTED THAT EMPLOYEES IN A LARGE SCALE HAD FI LED ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 6 RETURNS OF INCOME AS PER TDS SALARY CERTIFICATE IN FORM NO. 16 AND HAD NOT DISCLOSED LEASE RENT & MAINTENANCE CHARGES RECEIVED INCLUDING ASSESSEE. WHEN A LARGE NUMBER OF PERSONS FILED THEIR RETURNS OF INCOME BY SAME MISTAKE THAT MISTAKE CANNOT BE SAID TO BE A CASE WHERE PENALTY PROVISIONS U/S 271(1)(C) IS APPLICABLE, CONTRARY IT SUPPORTS TO ASSESSEES BONAFIDE. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGH T ON RECORD BY THE REVENUE WE, RESPECTFULLY, FOLLOWING T HE ORDER OF THE TRIBUNAL (SUPRA), HOLD THAT UNDER THE PECULIAR FACTS AND CIRCUMSTANCES, THERE IS NO CONCEALMENT ON PART OF THE ASSESSEE AND ACCORDINGLY THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE T RIBUNAL, WE CANCEL THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A). THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE, AL LOWED. ITA NO.3208 AND 3212/MUM/2010 (AYS: 2003-04 &2004-0 5) 7. AT THE TIME OF HEARING, BOTH THE PARTIES HAVE AG REED THAT THE FACTS OF THE ABOVE CASES ARE SIMILAR TO THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2002-03 THEREFORE PLEA TAKEN BY THEM IN THE SAID ASSESSMENT YEAR BE CONSID ER WHILE DECIDING THE APPEALS FOR THE ABOVE ASSESSMENT YEARS . 8. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON REC ORD AND IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT O N RECORD BY THE REVENUE, WE FOLLOWING THE SAME VIEW IN A SSESSEES ITA NO.3207,3208 AND 3212/MUM/2010 (AYS: 2002-03, 2003-04 AND 2004-05) 7 APPEAL FOR THE ASSESSMENT YEAR 2002-03 IN PARAGRAPH 6 OF THIS ORDER DELETE THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, ALLOWED. 9. IN THE RESULT, ASSESSEES APPEALS STAND ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 30 TH MAY 2011. SD SD (R.K.PANDA) ( D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30TH MAY, 2011 SRL:30511 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI