ARINDAM MITRA, MUMBAI V. ACIT RG 21(1), MUMBAI

ITA 3631/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0978 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO. 3631/MUM/2016 ( / ASSESSMENT YEAR: 2011 - 12 ) ARINDAM MITRA PLOT NO. 123, ASHISH BLDG., GULMOHAR ROAD NO. 10, JVPD SCHEME, JUHU, MUMBAI - 400 049 / VS. ASST. CIT 21(1), MUMBAI ./ ./ PAN/GIR NO. ACUPM 5122 D ( / APPELLANT ) : ( / RESPONDENT ) / A PPELLANT BY : SHRI ANANT N. PAI / RESPONDENT BY : SHRI M. V. RAJGURU / DATE OF HEARING : 25.10.2017 / DATE OF PRONOUNCEMENT : 03.01 .2018 / O R D E R PER SHAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 37 , MUMBAI DATED 21.03.2016 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2011 - 12. 2. THE GROUNDS OF APPEAL READ AS UNDER: 2 ITA NO. 3631/MUM/2016 (A.Y. 2011 - 12) ARINDAM MITRA VS. ASST. CIT 1. A) THE LEARNED LD. COMMISSIONER OF INCOME TAX (APPEALS) 37 ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.16,05,662/ - WITHOUT CONSIDERING THE FACTS AND THE SUBMISSION OF THE APPELLANT. B) THE LEARNED LD. COMMISSIONER OF INCOME TAX (APPEALS) 37 FAILED TO CONSIDER THE FACT THAT THE APPELLANT HAD SU O MOTTO OFFERED THE RECEIPTS FOR TAX PURPOSE ON THE VERY FIRST SUBMISSION MADE BEFORE THE ACIT, EVEN BEFORE ANY ENQUIRY OR QUERY OR QUESTION IS RAISED BY THE REVENUE. 3. THE ASSESSEE IN THIS CASE IS AN INDIVIDUAL ENGAGED IN ENTERTAINMENT INDUSTRY AND DER IVES INCOME FROM SALARY, PROFESSION INCOME AND INCOME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE FILED REVISED COMPUTATION OF INCOME DECLARING TOTAL INCOME OF RS.76,80,478/ - AS AGAINST RS.2 4,84,163/ - DECLARED IN THE RETURN OF INCOME. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT DUE TO THE NATURE OF THE PRO FESSION OF THE ASSESSEE THERE WERE F EW RECEIPTS WHICH THE ASSESSEE COULD NOT RECOLLECT AT THE TIME OF FILING OF THE RETURN OF INCOME. IT WAS FURTHER STATED THAT THERE WAS NO CORRESPONDING ENTRIES IN FORM 26AS AND THE SAME RECEIPTS WERE SHOWN AS CURRENT LIABILITIES IN THE AUDITED BALANCE SHEET. HOWEVER, THE ASSESSING OFFICER DID NOT COMMENT ANYTHING UPON THE ASSESSEES EXPLANATION . HE HELD THAT IN VIEW OF THE REVISED COMPUTATION OF THE INCOME FILED BY THE ASSESSEE, PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT IS INITIATED SEPARATELY , F OR FURNISHING OF INACCURATE PARTICULARS OF INCOME THEREBY CONCEALING THE PARTICULARS OF INCOME . I N THE PENALTY ORDER, THE ASSESSING OFFICER ALSO DID NOT ACCEPT THE ASSESSEES CONTENTION THAT THE ASSESSEE RELIED UPON THE EXPERTISE OF TAX PROFESSION 3 ITA NO. 3631/MUM/2016 (A.Y. 2011 - 12) ARINDAM MITRA VS. ASST. CIT THAT THE SAID INCOME WAS NOT REFLECTED IN THE FORM 26 AS THAT THE ASSESSEE REVISED THE RETURN BEFORE AN Y QUERY IN THIS REGARD BY THE REVENUE. HENCE , THE PENALTY WAS LEVIED . 4. UPON THE ASSESSEES APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO CONFIR MED THE ADDITION. 5. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEAR D BOTH THE COUNSELS AND PERUSED THE RECORDS. WE FIND THAT IN THIS CASE, THE ASSESSEE HAS REVISED THE COMPUTATION BEFORE ANY DETECTION BY THE REVENUE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS EXPLAINED THAT IN THE PROFESSION IN WHICH THE ASSESSEE IS ENGAGED ADVANCES ARE RECEIVED AND THEY ARE ACCOUNTED IN HIS INCOME AS AND WHEN THE WORK IS DONE. IN THE PRESENT CASE, THE SAID AMOUNT WAS MISTAKENLY REFLECTED IN THE CURRENT LIABILITIES IN THE BALANCE SHEET. IT IS ALSO A PLEA THAT THERE WAS NO CORRESPONDING ENTRY IN FORM 26AS. THESE SUBMISSIONS OF THE ASSESSEE HAVE NOT BEEN COMMENTED UPON BY ANY OF THE REVENUE AUTHORITIES. THIS SHOWS THAT THE ASSESSEES CONDUCT WAS BONA FIDE AND WAS NOT CONTUMACIOUS SO AS TO WARRANT LEVY OF PENALTY. THE ASSESSI NG OFFICER HAS NOT SPECIFIED ANY REASON BUT HIMSELF COMMENTED IN THE ASSESSMENT ORDER THAT IN VIEW OF THE REVISED COMPUTATION OF INCOME, PENALTY PROCEEDINGS IS INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME THEREBY CONCEALING PARTICULARS OF INCO ME. THIS ALSO ACCENTUATES THE FACT THAT THERE IS NO SATISFACTION BY THE ASSESSING OFFICER FOR ANY INFRACTION ON THE PART OF ASSESSEE, AS TO WHETHER THIS IS A CASE OF FURNISHING OF INACCURATE PARTICULARS OR 4 ITA NO. 3631/MUM/2016 (A.Y. 2011 - 12) ARINDAM MITRA VS. ASST. CIT CONCEALMENT OF INCOME. UNDER THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, THE ASSESSEES CONDUCT IS BONA FIDE AND DOES NOT WARRANT VISIT OF THE R EVERSE OF THE PENALTY U/S. 271(1)(C). IN THIS REGARD, WE ALSO DRAW SUPPORT FROM THE DECISION OF THE HONBLE APEX COURT IN THE CASE O F HINDUSTAN STEELS LTD. VS . STATE OF ORRISSA [1972] 83 ITR 26 (SC) FOR THE PROPOSITION THAT THE ASSESSEE NEED NOT BE V ISI TED WITH THE R I GOU R OF PENALTY I F THE ASSESSEES CONDUCT IS NOT CONTUMACIOUS. 7. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.01.2018 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 03.01.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI