NARAYAN A. RAWOOL, PUNE V. ITO 26(2)3), MUMBAI

ITA 3211/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49203 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 30-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 23-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAKASH PANDI
• Keywords: TDS; Set aside
• Section: 271(1)(c)

Judgement Text

1 ITA NOS. 3210 & 3211/MUM/2010 (ASST YEAR 2003-03 & 03-04 ITA NO. 3209/MUM/2010 (ASST YEARS 2004-05 ) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI J SDHAKAR REDDY, AM & SHRI VIJAY P AL RAO, JM ITA NOS. 3210 & 3211/MUM/2010 (ASST YEAR 2003-03 & 03-04 ITA NO. 3209/MUM/2010 (ASST YEARS 2004-05 ) NARAYAN A RAWOOL C/O MR D Y PANDIR ADV. 1187/10 KRUPA SHIVAJINAGAR PUNE411055 VS THE INCOME TAX OFFICER WARD 26(2)(3), MUMBAI ( APPELLANT ) (RESPONDENT) PAN NO.ADUPR1117Q A SSESSEE BY SHRI PRAKASH PANDI REVENUE BY SHRI GOLISRINIWAS RAO PER VIJAY PAL RAO, JM THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST THE SEPARATE ORDERS, ALL DATED 29.9.2009 OF THE CIT(A) ARISING FROM THE PENA LTY LEVIED U/S 271(1) ( C) OF THE I T ACT FOR THE AYS 2002-03 TO 2004-05 RESPECTIVELY. 2 THE ONLY COMMON ISSUE ARISES IN THESE APPEALS IS WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)( C) OF THE ACT. 3 THE ASSESSEE IS AN EMPLOYEE OF BHARAT PETROLEUM C ORPORATION LTD (BPCL). THE ASSESSING OFFICER FOUND THAT THE EMPLOYEES IN A LAR GE SCALE HAD FILED THEIR RETURNS OF INCOME AS PER THE TDS CERTIFICATE IN FORM 16 AND HAD NOT B EEN DISCLOSED THE LEASE RENT AND MAINTENANCE CHARGES RECEIVED THEM DURING THE RELEVA NT PERIOD. THE ASSESSING OFFICER MADE 2 ITA NOS. 3210 & 3211/MUM/2010 (ASST YEAR 2003-03 & 03-04 ITA NO. 3209/MUM/2010 (ASST YEARS 2004-05 ) AN ADDITION OF THE LEASE RENT AND MAINTENANCE CHARG ES RECEIVED BY THE ASSESSEE TREATING THE SAME AS INCOME FROM HOUSE PROPERTY AND ALSO INITIAT ED PENALTY PROCEEDINGS. 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE FIN D THAT THIS ISSUE OF LEVY OF PENALTY HAS BEEN REPEATEDLY CONSIDERED AND DECIDED BY THE TRIBU NAL IN VARIOUS APPEALS RELATING TO THE EMPLOYEES OF BPCL. WE FIND THE TRIBUNAL IN THE CA SE OF CHANDAKANT K MAHADKAR VS ITO IN ITA NOS 1918 TO 1921/MUM/2010 VIDE ORDER DATED 11. 2.2011 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT PORTION OF THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL READS AS UNDER: 6 THE LD COUNSEL FOR THE ASSESSEE, AT THE OUTSET, F ILED THE COPIES OF THE ORDERS OF THE TRIBUNAL IN THE FOLLOWING CASES: S. S.S. S. NO NONO NO IN THE CASE OF IN THE CASE OF IN THE CASE OF IN THE CASE OF ITA NO. ITA NO. ITA NO. ITA NO. ORDER DATE ORDER DATE ORDER DATE ORDER DATE 1 MR MANGHAL GAONKAR &ORS VS ITO 5879/MUM/2009 27.08.2010 2 SHRI RAVINDRA L SATHE VS ITO 2828/MUM/2008 22.12. 2009 3 SMT VERONICA J CORREIA VS ITO 5986/5987/5988/MUM/2 009 30.06.2010 4 SMT ADRIN J AUGUSTINE VS ITO 1922 TO 1924/MUM/2010 01.01.2011 5 SHRI KESHVAN PILLAY VS ITO 1595/MUM/2010 12.01.20 11 6.1 REFERRING TO THE ABOVE DECISIONS, HE SUBMITTED THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE CO-ORDINATE BENCHES OF THE TRIBUNAL HAVE CANCELLED THE PENALTY U/S 271(1)(C) LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) ON ACCOUNT OF SIMILAR DISALLO WANCE OF LEASE RENT, ARREARS OF LEASE RENT AND MAINTENANCE CHARGES. SI NCE THIS BEING A COVERED MATTER BY THE DECISIONS OF THE COORDINATE B ENCHES OF THE TRIBUNAL IN THE CASE OF BPCL EMPLOYEES; THEREFORE, THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND THE PENALTY LEVIED BE CANCELLED. 6.2 THE LD DR, ON THE OTHER HAND, FAIRLY CONCEDED T HAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE COORDINATE BENCHES OF THE TRIBUNAL HAVE CANCELLED THE PENALTY U/S 271(1)(C) LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A). 7 AFTER HEARING BOTH THE SIDES, WE FIND THE COORDIN ATE BENCHES OF THE TRIBUNAL IN THE CASES OF THE BPCL EMPLOYEES, CITED SUPRA, UNDER IDENTICAL FACTS AND CIRCUMSTANCES HAVE CANCELLED THE PENALTY LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A). THE LD DR COULD NOT BRING ANY CONTRARY MATERIAL OR DISTINGUISHABLE FEATURES AGAIN ST THE ORDER OF THE TRIBUNAL. THEREFORE, RESPECTFULLY FOLLOWING THE DEC ISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL, UNDER IDENTICAL FACTS AND CIRCUMSTANCES, WE ARE 3 ITA NOS. 3210 & 3211/MUM/2010 (ASST YEAR 2003-03 & 03-04 ITA NO. 3209/MUM/2010 (ASST YEARS 2004-05 ) OF THE CONSIDERED OPINION THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE I T ACT. ACCORDINGLY, THE ORDER O F THE CIT(A) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO CANCEL THE PENALTY. THE GROUNDS TAKEN BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. ITA NOS. 1919 TO 1921/MUM/2010 (ASSESSMENT YEARS 20 02-03 TO 04-05) 8 THERE IS A DELAY OF 240 DAYS EACH IN FILING OF THE ABOVE APPEALS BY THE ASSESSEE. THE ASSESSEE HAS FILED AFFIDAVITS E XPLAINING THE REASONS FOR DELAY IN FILING OF THESE APPEALS. AFTER HEARING BO TH THE PARTIES, THE DELAY IN FILING OF THESE APPEALS IS CONDONED AND THESE AP PEALS ARE ADMITTED FOR HEARING. 9 IN ALL THESE THREE APPEALS, THE ASSESSEE HAS CHAL LENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY OF ` 8,308/-, ` 43,810/- AND ` 12,696/- LEVIED BY THE ASSESSING OFFICER U/S 271( 1)(C) OF THE I T ACT FOR THE ASSESSMENT YEARS 2002-03, 03-04 AND 04-05 RESP ECTIVELY. 10 THE GROUNDS TAKEN BY THE ASSESSEE IN ALL THESE THREE APPEALS ARE IDENTICAL TO THE GROUND TAKEN IN ITA NO.1918/MUM/20 10. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS TAKEN BY THE ASSESSEE HAVE BEEN ALLOWED. FOLLOWING THE SAME RATIO, THE PENAL TY SUSTAINED BY THE CIT(A) IN THESE APPEALS ARE ALSO CANCELLED. THE GROUNDS TAKEN IN THESE APPEALS ARE ALLOWED. 11 IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 5 IN VIEW OF THESE FACTS IT BECOME CLEAR THAT THE P ENALTY INITIATED U/S 271(1)( C) IN IDENTICAL CIRCUMSTANCES ON OTHER EMPLOYEES OF BPCL HAS BEEN FINALLY DELETED BY THE TRIBUNAL. IN THE ABSENCE OF ANY DISTINGUISHING FEAT URE BROUGHT TO OUR NOTICE BY THE LD DR, RESPECTFULLY FOLLOWING THE PRECEDENTS, WE OVERTURN THE IMPUGNED ORDERS AND ORDER FOR THE DELETION OF THE PENALTY IN ALL THESE YEARS UNDER CO NSIDERATION. 6 IN THE RESULT ALL THE APPEAL ARE ALLOWED. ORDER PRONOUNCED ON THE 29 TH , DAY OF JUNE 2011. SD/- SD/- ( J SUDHAKAR REDDY ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 29 TH , JUNE 2011 RAJ* 4 ITA NOS. 3210 & 3211/MUM/2010 (ASST YEAR 2003-03 & 03-04 ITA NO. 3209/MUM/2010 (ASST YEARS 2004-05 ) COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI