GULBANO MOHD. HUSAIN GIGA, MUMBAI V. INCOME TAX OFFICER-13(1)(2), MUMBAI

ITA 3607/MUM/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7804 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Revised return; Set aside
• Section: 271(1)(c); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ) , G BENCH MUMBAI BEFORE SHRI RAJESH KUMAR , AM & SHRI AMARJIT SINGH, JM ITA NO. 3607 /MUM/ 20 18 ( ASSESSMENT YEAR : 2009 - 10 ) GULBANO MOHD. HUSAIN GIGA, ROOM NO.11, 1 ST FLOOR MEHBOOB MANSION NEAR K ESAR BAUGH HALL DONGRO CHARNULL DONGRI MUMBAI 400 009 VS. INCOME TAX OFFICER 13(1)(2), AYAKAR BHAVAN MUMBAI PAN/GIR NO. AFYPG4701K (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI RASHMIKANT MODI REVENUE BY SHRI T.S. KHALSA DATE OF HEARING 15 / 12 /202 0 DATE OF PRONOUNCEMENT 19 / 01 /202 1 / O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 14/03/2018, PASSED BY THE CIT(A) - 56 , MUMBAI, FOR THE A SSESSMENT YEAR 2009 - 1 0 . ITA NO . 3607/MUM/2018 M/S. GULBANO MOHD. HUSAIN GIGA 2 2. THE ONLY EFFECTIVE ISSUE RAISED BY THE ASSESSEE IN THE VARIOUS GROUNDS OF APPEAL IS AGAINST THE CONFIRMATION OF PENALTY OF RS.2,36,914/ - BY CIT(A) AS IMPOSED BY THE AO U/S.271(1)(C) OF THE ACT. 3. THE F ACTS IN BRIEF ARE THAT TH E ASSESSEE FILED RETURN ON 01/08/2009 DECLARING TOTAL INCOME OF RS.1,75,932/ - WHICH WAS REVISED SUBSEQUENTLY ON 04/08/2011 DECLARING TOTAL INCOME OF RS.9,81, 1 82/ - . I N THE SAID REVISED RETURN OF INCOME , T HE ASSESSEE DISCLOSED THE SHARE OF PROFIT ON SALE CO NSIDERATION OF RS.16,80,250/ - OF SALE OF SHOP IN AHMEDABAD WHICH HAS NOT BEEN DISCLOSED IN THE ORIGINAL RETURN OF INCOME. THE DDIT(INV.), AHMEDABAD VIDE LETTER DATED 01/03/2011 INFORMED THE AO THAT DURING THE COURSE OF SURVEY U/S.133A CONDUCTED ON 28/03/ 2010 AT THE BUSINESS PREMISES OF M/S. GOLD FINCH JEWELERS LTD., THE SURVEY TEAM HAD IMPOUNDED CERTAIN PAPERS WHICH REVEALED THAT M/S. GOLD FINCH JEWELERS LTD., HAD ENTERED INTO A N OTORIZED AGREEMENT FOR PURCHASE OF SHOP IN AHMEDABAD FROM THE ASSESSEE WITH THREE OTHERS CO - OWNERS FOR CONSIDERATION OF RS.67,23,000/ - FOR WHICH THERE WAS ANOTHER AGREEMENT DATED 08/04/2008 FOR CONSIDERATION OF RS.33,00,000/ - ONLY FROM THE SAME VENDOR S M EANING THEREBY THAT THE DIFFERENCE OF RS.34,23,000/ - WAS PAID IN CASH BY M/S. GOLD FINCH JEWELLERS LTD., TO THE ASSESSEE AND ANOTHER CO - OWNERS . CONSEQUENTLY , THE CASE OF THE ASSESSEE WAS RE - OPENED BY U/S.147 OF THE ACT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT WHICH WAS SERVED ON THE ASSESSEE . T HEREAFTER , STATUTORY NOTICE W ER E DULY ITA NO . 3607/MUM/2018 M/S. GULBANO MOHD. HUSAIN GIGA 3 ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSMENT WAS COMPLETED U/S.143( 3 ) R.W.S.147 OF THE ACT VIDE ORDER DATED 30/11/2012 AT R S.10,13,680/ - . IN THE REVISED RETURN OF INCOME, THE ASSESSEE HAS DISCLOSED 1/4 TH SHARE OF SALE CONSIDERATION OF RS.16,80, 250/ - AND CLAIMED COST OF IMPROVEMENT OF RS.1,30,000/ - ATTRIBUTABLE TO SHARE. THE ASSESSEE W AS ASKED TO FURNISH CASH VOUCHERS IN RESPECT OF EXPENSES OF RENOVATION AND IMPROVEMENTS , HOWEVER, THE ASSESSEE COULD NOT PRODUCE ANY BILLS AND THE AO FINALLY DISAL LOWED THE EXPENSES TO 25% WHICH WORKED OUT TO RS.32,500/ - HEREBY ALLOWING DEDUCTION TOWARDS COST OF IMPROVEMENT OF RS.97,500/ - . THE AO INITIATED THE PENALTY PROCEEDINGS IN THE ASSESSMENT ORDER FOR FAILURE OF THE ASSESSEE TO FURNISH THE INCOME FULLY AND TR ULY IN THE RETURN OF INCOME . THE AO IMPOSED PENALTY EQUAL TO 10 0 % OF THE TAX TO BE EVADED WHICH WORKED OUT TO RS.2,36,914/ - FOR CONCEALMENT OF INCOME BY INVOKING EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT. 4. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A ) AFFIRMED THE ORDER OF THE AO BY HOLDING THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME BY NOT DISCLOSING THE INCOME FROM SALE OF SHOP IN THE ORIGINAL RETURN OF INCOME AND ASSESSEE HAS ONLY DISCLOSED THE INCOME IN THE REVISED RETURN OF INCOM E AFTER THE SURVEY WAS CONDUCTED ON THE PURCHASER M/S. GOLD FINCH JEWELERS LTD., AND THUS , CONFIRMED THE PENALTY. ITA NO . 3607/MUM/2018 M/S. GULBANO MOHD. HUSAIN GIGA 4 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . I N THIS CASE THE UNDISPUTED FACTS ARE THAT THE ASSESSEE HA S NOT DISCLOSED HIS INCOME FROM SALE OF SHOP IN THE ORIGINAL RETURN OF INCOME WHICH WAS DULY DISCLOSED IN THE REVISED RETURN OF INCOME AND THE DUE TAX ES W ERE PAID ALONG WITH INTEREST THOUGH THE RETURN WAS FILED AFTER SURVEY WAS CONDUCTED ON THE PURCHASER ON 28/03/2010 WHEREAS THE REVISED RETURN WAS FILED ON 04/08/2011. IN THE ASSESSMENT FRAMED BY THE AO, THE ONLY DISALLOWANCE MADE WAS RS.32,500 WHICH WAS EQUAL OF 25% OF THE COST OF IMPROVEMENT. IN THIS CASE WE NOTE THAT NO NOTICE WAS ISSUED U/S.148 PRIOR T O THE FILING OF THE REVISED RETURN AND THUS, WE NOTE THAT ASSESSEE HAS VOLUNTARILY SUO - MOT T O FILED THE REVISED RETURN OF INCOME AND OFFERED TO TAX WHATEVER WAS LEFT FROM BEING DISCLOSED IN THE ORIGINAL RETURN OF INCOME. IN OTHER WORDS, THE REVISED RETURN W AS NOT FILED IN RESPONSE TO NOTICE ISSUED U/S.148 AND THEREFORE, THE ASSESSEE CANNOT BE HELD LIABLE FOR FURNISHING IN ACCURATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF INCOME AS THE INCOME STANDS OFFERED TO TAX IN THE REVISED RETURN OF INCOME. THEREFOR E, WE ARE NOT IN AGREEMENT WITH THE CONCLUSION DRAWN BY THE LD. CIT(A) ON THIS ISSUE AS ASSESSEE CANNOT BE PENALIZED WHERE ASSESSEE SUO - MOT T O CAME FORWARD AND PAID TAX ON THE INCOME WHICH WAS OMITTED TO DISCLOSE IN THE ORIGINAL RETURN OF INCOME AND WAS OF FE RED TO TAX IN THE REVISED RETURN OF INCOME AND ESPECIALLY THE FACT THAT NOTICE U/S.148 BY ISSUE AFTER FILING OF REVISED RETURN . I N VIEW OF THESE FACTS ITA NO . 3607/MUM/2018 M/S. GULBANO MOHD. HUSAIN GIGA 5 WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE LD. AO TO DELETE THE PENALTY. 6. IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 19 / 01 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( AMARJIT SINGH ) SD/ - ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMB AI ; DATED 19 / 01 / 2021 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORD ER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//