Rajiv Singh Sengar, V. Income-tax Officer,

ITA 362/PUN/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7081 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-11-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Revised return
• Section: 139(5); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 362 /PUN/20 16 / ASSESSMENT YEAR : 2011 - 12 SHRI RAJIV SINGH SENGAR, HOUSE NO. 21, SUN CITY, MAHALAXMI NAGAR, MR - 2, INDORE (M.P.) - 452 001 PAN : APIPS7570J ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD - 1(2), AURANGABAD. / RESPONDENT A SSESSEE BY : NONE REVENUE BY : DR. VIVEK AGGARWAL. / DATE OF HEARING : 23.11.2017 / DATE OF PRONOUNCEMENT : 28 .11.2017 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2, AURANGABAD DATED 04.01.2016 CONFIRMING LEVY OF PENALTY U/S. 271(1)( C ) OF THE INCO ME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO.362 /PUN/2016 A.Y. 2011 - 12 2. THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE ON THE ADDRESS GIVEN IN FORM - 36 THROUGH RPAD ON 0 2 .11.2017 . THE NOTICE OF APPEAL IS RECEIVED BACK UNSERVED WITH POSTAL REMARK S ADD LEFT. THEREAFTER, REVISED FORM - 36 DATED 03.11.2016 I S RECEIVED FROM THE ASSESSEE VIDE POST ON 16.11.2016. SINCE THE ISSUE INVOLVED IN APPEAL IS TRIVI AL IN NATURE, THE SAME IS TAKEN UP FOR HEARING WITH THE A SSISTANCE OF LD. DR AND MATERIAL AVAILABLE ON RECORD. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS A SALARIED EMPLOYEE. THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2011 - 12 U/S. 139(1) OF THE ACT ON 29.07.201 1 DECLARING TOTAL INCOME OF RS.4,24,578/ - . THE SAME WAS PROCESSED U/S.143 (1) OF THE ACT. THEREAFTER, ASSESSEE FILED REVISED RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR ON 18.09.2013 DECLARING TOTAL INCOME OF RS.12,99,070/ - . THE REVISED RETURN FILED BY AS SESSEE IS BEYOND THE TIME LIMIT SPECIFIED U/S. 139(5), THEREFORE, THE SAME IS NON - EST . THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND AC CORDINGLY, FIRST NOTICE U/S. 143 ( 2 ) WAS ISSUED TO THE ASSESSEE ON 08.08 .201 2 . IN SCRUTINY ASSESSMENT P ROCEEDINGS, THE ASSESSING OFFICER MADE ADDITION OF THE DIFFERENCE BETWEEN THE INCOME RETURNED IN ORIGINAL RETURN OF INCOME AND THE INCOME OFFERED TO TAX IN SECOND RETURN FILED BY ASSESSEE . PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE ALSO INITIATED AGAINST THE ASSESSEE FOR CONCEALING PARTICULARS OF INCOME. THE ASSESSEE PAID ENTIRE TAX LIABILITY AND INTEREST AT THE TIME OF FILING HIS SECOND RETURN. THE ASSESSING OFFICER VIDE ORDER DATED 25.06.2014 LEVIED PENALTY OF RS.2,24,028/ - U/S. 271(1) (C) OF THE ACT FOR CONCEALING THE PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. 3 ITA NO.362 /PUN/2016 A.Y. 2011 - 12 4. AGGRIEVED BY THE ORDER LEVYING PENALTY DATED 25.06.2014 , THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND EXPLAINED REASONS FOR VA RIATION IN INCOME RETURNED U/S. 139 AND THE SECOND RETURN OF INCOME . NOT CONVINCED WITH THE REASONS, THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTION OF ASSESSEE AND CONFIRMED THE LEVY OF PENALTY. NOW THE ASSESSEE IS IN SECOND APPEAL BEFORE TRIBUNAL ASSAILING LEVY OF PENALTY. 5. DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) SUBMITTED THAT THE ASSESSEE FILED HIS ORIGINAL RETURN OF INCOME WITHOUT DISCLOSIN G HIS ENTIRE TOTAL TAXABLE INCOME. THE ASSESSEE FILED SECOND RETURN OF INCOME BELATEDLY ONLY WHEN THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED TO HIM. THE RETURN OF INCOME DISCLOSING C ORRECT INCOME WAS FILED BY ASSE SSEE BEYOND THE TIME SPECIFIED U/S.139 (5) OF THE ACT. THEREFORE, THE SAME COULD NOT BE TREATED AS REVISED RETURN OF INCOME. THE ASSESSEE WOULD NOT HAVE DISCLOSED HIS CORRECT INCOME IF THE CASE OF ASSESSEE WOULD NOT HAVE BEEN SELECTED FOR SCRUTINY. 6. WE H AVE HEARD THE SUBMISSION OF LD. DR AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IS A SALARIED EMPLOYEE. IT IS EVIDENT FROM THE FACTS OF THE CASE THAT THE ASSESSEE FILED HIS RETURN OF INCOME U/S. 139 (1) OF THE ACT ON THE BASIS OF FORM - 16 AVAILABLE WITH HIM FROM HIS CURRENT EMPLOYER. IT APPEARS THAT T HER E I S SOME MIS - MATCH IN FORM - 26AS AND FROM - 16 ON THE BASIS OF WHICH THE ORIGINAL RETURN WAS FILED BY ASSESSEE. AT LATER POINT OF TIME, WHEN THE AS SESSEE REALIZED HIS MISTAKE, HE FILED SECOND RETURN OF INCOME AS PER FORM - 26AS AND PAID TAX AND INTEREST IN ACCORDANCE WITH THE PROVISION OF THE ACT. SINCE THE REVISED 4 ITA NO.362 /PUN/2016 A.Y. 2011 - 12 RETURN WAS FILED BY ASSESSEE BEYOND TIME LIMIT PRESCRIBED UNDER THE PROVISI ON OF SECTION 139(5) OF THE ACT, THE SAME WAS NOT CONSIDERED BY THE DEPARTMENT. IN SCRUTINY ASSESSMENT, THE ASSESSING OFF ICER MADE ADDITION O F THE DIFFERENCE BETWEEN INCOME DECLARED IN SECOND RETURN AND THE ORIGINAL RETURN . APART FROM THAT THERE WAS NO OTHER ADDITION. 7. IT IS A WELL SETTLED LAW THAT ASSESSMENT PROCEEDING AND PENALTY PROCEEDING ARE TWO INDEPENDENT AND SE PARATE PROCEEDINGS. IT IS NOT NECESSARY THAT EVERY ADDITION MADE DURING ASSESSMENT SHOULD BE SUBJECT TO LEVY OF PENALTY. THE PRESENT CASE APPEARS TO BE A CASE WHERE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON THE BASIS OF FORM - 16 AVAILABLE WITH HIM WITHOU T REFERRING TO FORM - 26AS. APPARENTLY , IT IS AN INADVERTENT SILLY MISTAKE ON THE PART OF ASSESSEE IN FILING RETURN OF INCOME WITHOUT TAKING INTO CONSIDERATION TDS STATEMENT IN FORM - 26AS. THE HONBLE APEX COURT IN THE CASE OF PRICE WATER H OUSE C OOPERS PVT. LTD V S . C.I.T REPORTED AS 348 ITR 306 , DELETED THE LEVY OF PENALTY U/S. 271(1) (C) WHERE THE ASSESSEE COMMITTED INADVERTENT SILLY MISTAKE IN FILING RETURN OF INCOME . AFTER EXAMINING THE FACTS OF THE CASE , WE ARE OF CONSIDERED VIEW THAT THIS IS NOT A FI T CASE FOR LEVY OF PENALTY. ACCORDINGLY, T HE PENALTY LEVIED U/S. 271(1) (C) IS DELETED. 8. IN THE PRESENT CASE, THE PENALTY IS LIABLE TO BE DELETED ON TECHNICAL GROUND AS WELL. A PERUSAL OF ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER HAS INITIATED P ENALTY PROCEEDINGS U/S. 271(1) (C) OF THE ACT FOR CONCEALMENT OF INCOME. WHEREAS, AT THE TIME OF LEVY OF PENALTY, THE ASSESSING OFFICER HAS INVOK ED BOTH THE LIMBS OF SECTION 271(1)(C). IN THE ORDER LEVYING PENALTY, THE ASSESSING OFFICER OBSERVED: 5 ITA NO.362 /PUN/2016 A.Y. 2011 - 12 I , THEREFORE, LEVY A MINIMUM PENALTY OF RS. 2,24,028/ - (RS. TWO LAC TWENTY FOUR THOUSAND TWENTY EIGHT ONLY) FOR CONCEALING THE PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME . IT IS OBVIOUS FROM THE PERUSAL OF ASSESSMENT ORDER AND ORDER LEVYING PENALTY THAT THERE IS NO COHERENCE OF REASONING IN THE MIND OF ASSESSING OFFICER WHILE RECORDING SATISFACTION AND AT THE TIME OF LEVY OF PENALTY. THUS, I N THE LIGHT OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINC HERY REPORTED AS 392 ITR 4, THE ORDER LEVYING PENALTY IS HELD TO BE BAD IN LAW. 9 . IN THE RESULT , THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED ON TUESDAY, THE 28 TH DAY OF NOVEMBER , 201 7 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 28 TH NOVEMBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 2, AURANGABAD. 4. THE PR. CIT - 2, AURANGABAD. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .