GAYATRI SUBRMANIAN, MUMBAI V. ITO WD 26(1)(2), MUMBAI

ITA 3328/MUM/2010

• Counselvise Citation: 332819914 RSA 2010
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 04-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 28-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K V SAMPAT KUMAR
• Keywords: Rectification of order
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NOS.3328, 3329 & 3330/ MUM/2010 ASSESSMENT YEARS: 2002-03, 2003-04 & 2004-05 MRS GAYATRI SUBRAMANIAN, .. APPELLANT 703, SAI AVENUE BEHIND SAI SADHAN HOSPITAL, GHAZLETE CHAWAL, MULUND(EAST) MUMBAI-81 PA NO.AMQPS 0034 L VS INCOME TAX OFFICER, WARD 26(1)(2) ,. RESPONDE N T KAMLA DUTT MITTAL BUILDING, 6 TH FLOOR, CHARINI ROAD MUMBAI. APPEARANCES: K. GOPAL & JITENDRA SINGH, FOR THE APPELLANT K.V.SAMPATKUMAR, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. THESE THREE APPEALS ARE DIRECTED AGAINST CIT(A) S SEPARATE IDENTICAL ORDERS DATED 24.12.2009, CHALLENGING THE CORRECTNESS OF PE NALTIES UNDER SECTION 271(1)(C) IMPOSED ON THE ASSESSEE FOR THE ASSESSMENT YEARS 20 02-03, 2003-04 AND 2004-05, RESPECTIVELY. I.T.A NOS.3328, 3329 & 3330/ MUM/2010 MRS GAYATRI SUBRAMANIAN 2 2. THE IMPUGNED PENALTIES ARE IMPOSED WITH RESPECT TO SELF LEASE RENT AMOUNTING TO ` .78,120 RECEIVED BY THE ASSESSEE IN EACH OF THE RES PECTIVE YEARS FROM HER EMPLOYER, WHICH, ACCORDING TO THE ASSESSING OFF ICER, WAS NOT OFFERED TO TAX BY THE ASSESSEE. THE ASSESSEE IS AN EMPLOYEE OF BHARA T PETROLEUM CORPORATION LIMITED (BPCL) AND IT APPEARS THAT UNDER THE SELF LEASING S CHEME, A LARGE NUMBER OF EMPLOYEES LEASED THEIR FLATS TO THE BPCL ON SELF LE ASE BASIS BUT DID NOT DISCLOSE THE LEASE RENT SO RECEIVED IN THEIR TAX RETURNS. IT WA S IN THIS BACKDROP THAT THE ASSESSMENTS OF BPCL EMPLOYEES WERE REOPENED ON WHOL ESALE BASIS AND ADDITIONS IN RESPECT OF THE AMOUNTS RECEIVED ON SELF LEASE WERE MADE IN ALL THESE CASES. IN APPEAL, THE CIT(A) ALSO CONFIRMED THE IMPOSITION OF PENALTI ES. THE ASSESSEE IS NOT SATISFIED WITH THE STAND SO TAKEN BY THE CIT(A) AND IS IN APP EAL BEFORE US. 3. SHRI K.GOPAL, LEARNED COUNSEL FOR THE ASSESSEE POINTS OUT THAT THE ASSESSEE HAD ON HER OWN OFFERED THE LEASE RENT RECEIVED TO TAX AND GENERALIZED ASSUMPTION MADE BY THE ASSESSING OFFICER IS DEVOID OF MERITS. LEARNED COUNSEL POINTS OUT THAT THE AO HIMSELF VIDE ORDER PASSED UNDER SECTION 154 OF THE ACT RECTIFIED THE MISTAKE MADE IN QUANTUM ASSESSMENT PROCEEDINGS INASMUCH AS WHAT WAS SOUGHT TO BE TAXED IN THE HANDS OF THE ASSESSEE AS CONCEALMENT OF INCO ME WAS ALREADY OFFERED TO TAX SUO MOTO IN HER RETURN. LEARNED COUNSEL SUBMITS THAT O NCE THE QUANTUM ADDITION ITSELF IS ADMITTEDLY MADE ON THE WRONG PRESUMPTION OF FACT S, THERE CANNOT BE ANY OCCASION FOR UPHOLDING THE RELATED CONCEALED PENALTY. HE SU BMITS THAT WHATEVER MAY HAVE HAPPENED IN THE CASE OF BPCL EMPLOYEES, GENERALLY I N ASSESSEES CASE, NEITHER THERE IS ANY CONCEALMENT OF INCOME NOR ANY SUBSTANCE IN G ENERALIZED ALLEGATION SET OUT IN THE ORDERS OF THE AUTHORITIES BELOW. HE THUS URGES US TO DELETE THE PENALTY. 4. SHRI K.V.SAMPAT KUMAR, LEARNED DEPARTMENTAL REPR ESENTATIVE RELIES UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE RECORD OF THE CASE, WE FIND THAT THE PLEA OF THE LD COUNSEL IS INDEED CORRECT AS I S EVIDENT FROM THE IMPUGNED I.T.A NOS.3328, 3329 & 3330/ MUM/2010 MRS GAYATRI SUBRAMANIAN 3 RECTIFICATION ORDERS PASSED BY THE ASSESSING OFFICE R, COPIES OF WHICH WERE PLACED BEFORE US. THE ASSESSEE HAD DISCLOSED SELF LEASE RENTAL R ECEIVED FROM THE EMPLOYER COMPANY IN HER INCOME TAX RETURN AND, THEREFORE, THE IMPUGNED PENALTIES ARE INDEED DEVOID OF ANY LEGALLY SUSTAINABLE MERITS. WE, THEREFORE, DELETE THE SAME. 6. IN THE RESULT, APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARI NG ITSELF I.E. ON 4 TH MAY 2011. SD./- (D.MANMOHAN) VICE PRESIDENT SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 13 TH MAY, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),28, MUMBAI 4. COMMISSIONER OF INCOME TAX,MUMBAI CITY-26 , MU MBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI