VIJAY DHONDIRAM GANGAWANE, PUNE V. ITO 26(2)(3), MUMBAI

ITA 3283/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48549 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 27-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D Y PANDIT
• Section: 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.V. EASWAR, (PRESIDENT) AND SHRI R.K. PANDA (A.M.) ITA NOS. 3282 TO 3284/MUM /2010 ASSESSMENT YEARS 2002-03, 2003-04 & 2004-05 VIJAY DHONDIRAM GANGAWANE, C/O MR. D.Y. PANDIT ADV., 1187/10, KRUPA, SHIVAJINAGAR, PUNE 411 055. PAN : AFRPG 7702F VS. INCOME TAX OFFICER - 26(2)(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.Y. PANDIT RESPONDENT BY : SHRI VIJAY SHANKAR O R D E R PER R.K. PANDA, A.M. THE ABOVE 3 APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 26.10.2009 PASSED BY THE LD. CIT(A)-28, MUMBAI RELATING TO A.YRS 2002-03, 2003-04 AND 2004-05 RESP ECTIVELY. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPEALS, T HEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE. 2. LEVY OF PENALTY U/S 271(1)(C) OF ` 4,873/- FOR A.Y. 2002-03, ` 47,389/- FOR A.Y. 2003-04 & ` 15,689/- FOR A.Y. 2004-05 CONFIRMED BY THE LD. CIT(A) HAS BEEN CHALLENGED BY THE ASSESSEE IN ALL THE ABOVE THREE APPEALS. ITA3282 TO 3284/M/10 VIJAY DHONDIRAM GANGAWANE. 2 3. THERE IS A DELAY OF 83 DAYS IN FILING OF EACH OF THE ABOVE APPEALS. THE ASSESSEE HAS FILED AN AFFIDAVIT STATING THE CIR CUMSTANCES UNDER WHICH THE DELAY OCCURRED IN FILING OF THESE APPEALS . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE EMPLOYEE WAS NOT AW ARE OF THE COMPLEXITY OF THE TAX LAWS. ONLY WHEN THE TRIBUNAL IN SIMILAR CASES TOOK SYMPATHETIC VIEW AND AFTER CONDONING THE DELAY CANC ELLED THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT AND CON FIRMED BY THE LD. CIT(A) THAT THE ASSESSEE COULD REALISE HIS MISTAKE AND PRE FERRED THESE APPEALS BEFORE THE TRIBUNAL. 4. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE SERIES OF ORDERS OF THE TRIBUNAL IN CASES OF VARIOUS BPCL EMPLOYEES WHE RE DELAY IN FILING OF APPEALS HAS BEEN CONDONED, THE DELAY IN FILING THE APPEALS BY THE ASSESSEE IS CONDONED. 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASS ESSEE RECEIVED THE FOLLOWING AMOUNTS AS RENT & REIMBURSEMENT OF MAINTE NANCE CHARGES FROM HIS EMPLOYER BPCL WHICH WAS NOT DISCLOSED IN T HE RETURN FILED:- ASST. YEAR RENT ( `) MAINT( ` ) 2002-03 12,720 12,960 2003-04 56,225 12,960 2004-05 56,220 12,960 5.1 THE A.O. ISSUED NOTICE U/S 148 OF THE ACT AND T HEREAFTER COMPLETED THE ASSESSMENT BY TREATING THE RENT AS INCOME FROM HOUSE PROPERTY AND REIMBURSEMENT OF MAINTENANCE CHARGES AS INCOME FRO M OTHER SOURCES. SUBSEQUENTLY, HE LEVIED PENALTY U/S 271(1)(C) OF TH E ACT FOR CONCEALMENT OF ABOVE SUMS FOR A.Y. 2002-03 AT ` 4,873/-, FOR A.Y. 2003-04 AT ` 7389 AND FOR A.Y. 2004-05 AT ` 15,696/-. THE ABOVE PENALTIES HAVE BEEN CONFIRMED BY THE LD. CIT(A) FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US. ITA3282 TO 3284/M/10 VIJAY DHONDIRAM GANGAWANE. 3 6. THE LD. COUNSEL FOR THE ASSESSEE FILED THE FOLLO WING DECISIONS AND SUBMITTED THAT THE TRIBUNAL UNDER IDENTICAL FACTS A ND CIRCUMSTANCES HAS CANCELLED THE PENALTY LEVIED BY THE A.O. AND CONFIR MED BY THE LD. CIT(A). 1. MR. MANGHAL GAONKAR & OTHERS VS. ITO WD. 26(2)(2 ) MUMBAI, ITA NO. 5879/MUM/2009 A BENCH. 2. SHRI RAVINDRA L. SATHE VS. ITO WD. 26(2)(2), MUM BAI, ITA NO. 2828/M/08 D BENCH 3. SMT. VERONICA J. CORREIA VS. ITO 26(2)(1) MUMBAI , ITA NO. 5986,5987 & 5988/M/2009. 4. SHRI ADRIN J. AUGUSTINE VS. ITO WD. 26(2)(4) MUM BAI, ITA NOS. 1922 TO 1924/M/10 A BENCH. 5. MR. KESHAVAN P. PILLAY VS. ITO WD 26(2)(4), ITA NO. 1595/M/2010, A BENCH. 6. WINSTON I. RODRIGUES VS. ITO, WD. 28(2)(3) MUMBA I, ITA NOS. 1606/MUM/2010, 1572 & 1574/M/2010 G BENCH. 7. SHAILESH R.PRAPATI, ITA NO. 1708/M/10 D BENCH. 8. MR. DILIP N. PHATAK, ITA NO. 1931/M/10 D BENCH & MR. RAJESH V. GAD, ITA NO. 1932/M/10 D BENCH. 9. MR. CHANDRAKANT K. MAHADKAR, ITA NOS. 1918 TO 1921/MUM/2010 C BENCH. 10. SHRI ASHOK JADHAV, ITA NO. 2369/M/2010 A BENC H. 11. MRS. SYBIL LOBO, ITA MO. 3569/MUM/2009, J BEN CH. 7. THE LD. D.R. ON THE OTHER HAND FAIRLY CONCEDED T HAT THE TRIBUNAL HAS CANCELLED THE PENALTY LEVIED BY THE A.O. AND CO NFIRMED BY THE LD. CIT(A), AFTER CONSIDERING THE DECISIONS OF THE CO-O RDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF BPCL EMPLOYEES UNDER IDENTI CAL FACTS AND CIRCUMSTANCES. 8. HAVING CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND MATERIAL AVAILABLE ON RECORD, WE FIND THE CO-ORDINATE BENCHE S OF THE TRIBUNAL UNDER IDENTICAL FACTS AND CIRCUMSTANCES HAVE CANCEL LED THE PENALTY ITA3282 TO 3284/M/10 VIJAY DHONDIRAM GANGAWANE. 4 LEVIED BY THE A.O. AND CONFIRMED BY THE LD. CIT(A). RESPECTFULLY FOLLOWING THE DECISIONS OF THE CO-ORDINATE BENCHES OF THE TRI BUNAL IN IDENTICAL FACTS AND CIRCUMSTANCES, WE HOLD THAT IT IS NOT A FIT CAS E FOR LEVY OF PENALTY U/S 271(1)(C). ACCORDINGLY THE ORDERS OF THE LD. CIT(A) ARE SET ASIDE AND THE A.O. IS DIRECTED TO CANCEL THE PENALTY LEVIED BY HI M. THE GROUNDS TAKEN BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.4.2011. SD/- (R.V. EASWAR) PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 29 TH APRIL, 2011. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- CONCERNED , MUMBAI 4. COMMISSIONER OF INCOME TAX, CONCERNED, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA3282 TO 3284/M/10 VIJAY DHONDIRAM GANGAWANE. 5 1 DRAFT DICTATED ON 25.4.2011 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 26.4.2011 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS ITA3282 TO 3284/M/10 VIJAY DHONDIRAM GANGAWANE. 6