Shri Kuldipkumar D. Kaura, Baroda V. Dy. Commissioner of Income Tax, Baroda

ITA 3469/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8329 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 26-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MILAN MEHTA
• Keywords: Question of law

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.3469/AHD/2014 / ASSTT. YEAR: 2006-07 SHRI KULDIPKUMAR D. KAURA 106, SHRIRANG APARTMENT NR.KUBER BHAVAN KOTHI ROAD BARODA 390 001. PAN : AFVPK 8712 R VS DCIT, CIR.8 BARODA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI MILAN MEHTA, AR REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING : 13/09/2017 / DATE OF PRONOUNCEMENT: 09/10/2017 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-III, BARODA DATED 29.10.2014 PASSED FOR THE ASSTT.YEAR 2 006-07. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.4,45,272/- IMPOSED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AT THE RELEVANT TIME WAS CEO OF STERLITE INDUSTRIES. HE HAS ALSO COO OF VEN DANTA RESOURCES. HE HAS ITA NO.3469/AHD/2014 2 FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME A T RS.2,12,75,910/-. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THA T THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.16,19,940/- UNDER SECTION 10(13A) O F THE INCOME TAX ACT, 1961. ON SCRUTINY OF THE ACCOUNTS, IT CAME TO THE NOTICE OF THE AO THAT THE ASSESSEE HAD BEEN PROVIDED AN ACCOMMODATION FROM TH E COMPANY, AND THEREFORE, HE WAS NOT ENTITLED FOR RENT. ACCORDING LY, HE DISALLOWED CLAIM OF THE ASSESSEE AND INITIATED PENALTY PROCEEDINGS. 4. ON APPEAL, THE LD.CIT(A) DELETED THIS DISALLOWAN CE, BUT ON FURTHER APPEAL BY THE REVENUE TO THE TRIBUNAL, THE DISALLOW ANCE WAS RESTORED VIDE ITA NO.437/AHD/2010. IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 271(1)(C) R.W.S. 274, THE ASSESSEE CONTENDE D THAT HE HAS NOT CONCEALED ANY PARTICULARS. HE HAS DISCLOSED ALL THE DETAILS IN THE RETURN AS WELL AS IN THE ASSESSMENT PROCEEDINGS. THE AO HAS DISALLOWED EXEM PTION CLAIMED UNDER SECTION 10(13A). BUT SUCH CLAIM WAS MADE ON THE BA SIS OF FORM NO.16 ISSUED TO HIM. ACCORDING TO THE ASSESSEE, THERE WAS NO DE LIBERATE ATTEMPT TO CONCEAL THE PARTICULARS OF INCOME. THE AO WAS NOT SATISFI ED WITH THE EXPLANATION OF THE ASSESSEE. HE IMPOSED PENALTY AT RS.4,45,272/-. THE APPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 5. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT AGAINST THE ORDER OF THE TRIBUNAL DATED 15.6.2012 PASSED IN ITA NO.437/AHD/2010 THE ASSESSEE FILED TAX APPEAL BEARING NO.788 OF 2012 BE FORE THE HONBLE HIGH COURT. THE HONBLE HIGH COURT HAS ADMITTED THE AP PEAL ON THE FOLLOWING QUESTION OF LAW: ITA NO.3469/AHD/2014 3 WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE INCOME-TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN REVERSING TH E ORDER OF CIT(A) AND CONFIRMING ADDITION OF HRA OF RS.16,19,940/- BY DENYING EXEMPTION U/S.10(13A)? 6. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT S INCE HONBLE HIGH COURT HAS ADMITTED THE ABOVE QUESTION OF LAW, THERE FORE, IT IS QUITE DEBATABLE WHETHER THE EXEMPTION CLAIMED BY THE ASSESSEE UNDER SECTION 10(13A) IS ADMISSIBLE OR NOT. HE, THEREFORE, PRAYED THAT APPE AL OF THE ASSESSEE BE ALLOWED AND PENALTY BE DELETED. 7. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORD ER OF THE LD.CIT(A). 8. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE CASE OF THE ASSESSEE IS THAT HE HAS DISCLOSED ALL PARTICULARS CORRECTLY ON THE STRENGTH OF FORM NO.16 ISSUED BY H IS EMPLOYER. ACCORDING TO THE ASSESSEE, THERE IS NO DELIBERATE ATTEMPT TO FUR NISH INACCURATE PARTICULARS OR CONCEALED PARTICULARS OF INCOME. HE HAS CLAIMED DE DUCTION ON THE STRENGTH OF FORM NO.16 GIVEN TO HIM. THE AO HAS DISALLOWED THI S CLAIM, BUT ON APPEAL, LD.CIT(A) HAS ALLOWED THIS CLAIM. THE TRIBUNAL HAS REVERSED THE ORDER OF THE LD.CIT(A) AND RESTORED THE DISALLOWANCE, BUT AGAIN IN FURTHER LITIGATION BY THE ASSESSEE, HONBLE GUJARAT COURT HAS ADMITTED QUESTI ON ABOUT THE ADMISSIBILITY OF SUCH CLAIM. THIS DEVELOPMENT HAD GONE THROUGH D IFFERENT LEVELS OF ADJUDICATORY PROCESS WHICH INDICATED THAT THERE WER E SOME DEBATABLE ISSUES INVOLVED IN IT, AND THERE COULD NOT BE ANY FIRM CON CLUSION ABOUT ADDITIONS OR EXEMPTION OF THE CLAIM DISALLOWED TO THE ASSESSEE U NDER SECTION 10(13A) OF THE ACT. THEREFORE, IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT ASSESSEE ITA NO.3469/AHD/2014 4 DOES NOT DESERVES TO BE VISITED WITH PENALTY. WE A LLOW APPEAL OF THE ASSESSEE AND DELETE PENALTY. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 9 TH OCTOBER, 2017 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER