KISHORE L CHANDNA, MUMBAI V. ITO 26(20(3), MUMBAI

ITA 3674/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49020 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VENUGOPAL C NAIR
• Keywords: Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. ITA NO. 3674/MUM/2010 ASSESSMENT YEAR: 2002-03 KISHORE L. CHANDRA, APPELLANT C-1-8 JEEVAN NAIYA CHS LTD. CHEMBUR NAKA, MUMBAI 400 071 (PAN AAFPC3280 P) VS. INCOME-TAX OFFICER-26(2)(3), RESPONDENT KG MITTAL AYURVEDIC HOSPITAL BLDG., 6 TH FLOOR, CHARNI RAOD, MUMBAI 400 002. APPELLANT BY : MR. VENUGOPAL C. NAIR RESPONDENT BY : MR. RAJARSHI DWIVEDY . ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF CIT(A)- 28, MUMBAI, PASSED ON 21/01/2010 FOR THE ASSESSMENT YEAR 2002-03. 2. THE GROUND RAISED IN THIS APPEAL IS IN RESPECT O F LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN EMPLOYEE OF M/S BHARAT PETROLEUM CORPORATION LTD. THE EMPLOY ER COMPANY AS A STAFF WELFARE MEASURE HAD TAKEN THE PREMISES OF ITS EMPLOYEES ON LEASE AND PAID THEM LEASE RENT AND MAINTENANCE CHAR GES AND TREATED THE SAME AS A PERQUISITE IN THE NATURE OF A RENT FR EE ACCOMMODATION. ON VERIFICATION OF THE RETURN OF INCOME FILED BY TH E ASSESSEE FOR THE YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER FOU ND THAT THE ITA NO. 3674/M/2010 KISHORE L. CHANDRA 2 ASSESSEE HAD FILED RETURN AS PER THE TDS SALARY CER TIFICATE IN FORM NO. 16 AND HAD NOT DISCLOSED THE LEASE RENT AND MAINTEN ANCE CHARGES RECEIVED, BUT, THE ASSESSEE HAD CLAIMED INTEREST PA ID ON LOAN TAKEN FOR ACQUISITION OF HOUSE PROPERTY AS A DEDUCTION BY TREATING THE RENTED PROPERTY AS SELF OCCUPIED PROPERTY AND THEREBY CLAI MED A REFUND OF TAX PAID ON THE SALARY INCOME. THE ASSESSING OFFICER C OMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 147 AND THE SAID LEASE RENT AND MAINTENANCE CHARGES WERE BROUGHT TO TAX. THEREAFTER , THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) ON THE GROUND OF CONCEALMENT OF INCOME. AGAINST THE PENALTY PROCEEDI NGS, THE ASSESSEE HAD FILED A REPLY STATING THAT HE DID NOT UNDERSTAN D THE COMPLEX PROVISIONS OF IT ACT AND, THEREFORE, PRESUME THAT W HATEVER TAX WAS PAYABLE BY HIM MUST HAVE BEEN DEDUCTED BY THE EMPLO YER AND, THEREFORE, FILED THE RETURN OF INCOME ACCORDINGLY. THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AS NOT A BONAFIDE, AND LEVIED MINIMUM PENALTY AGAINST THE INCOME, ON WHICH TAX SOUGHT TO BE EVADED, OF RS. 12,405/-. ON APPEAL, THE CIT(A) C ONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CANVASSED THAT SIMILAR ISSUE CAME UP BEFORE THE ITAT, MUMBAI BENCH D, MUMBAI IN THE CASE OF SMT. KISHORI P. TENDOLKAR IN ITA NO. 5998/MUM/2009 VIDE ORDER DATED 30 TH JULY, 2010, A COPY OF WHICH IS AVAILABLE ON RECORD. 5. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE, WE FIND THAT AN IDENTICAL ISSUE CAME UP BEFORE THE ITAT, MU MBAI IN SMT. KISHORI P. TENDOLKAR (SUPRA) WHEREIN THE PENALTY LE VIED U/S 271(1)(C) WAS CANCELLED BY THE ITAT FOLLOWING THE DECISIONS O F COORDINATE BENCHES OF MUMBAI IN THE CASE OF MAKARAND C. JOSHI VS. ITO IN ITA NO. 3522/MUM/2008 VIDE ORDER DATED 17 TH SEPTEMBER, 2009 FOR AY 2001-02 AND IN THE CASE OF RAVINDRA LAXMAN SATHE VS . ITO IN ITA NO. ITA NO. 3674/M/2010 KISHORE L. CHANDRA 3 2828/MUM/2008 VIDE ORDER DATED 22 ND DECEMBER, 2009 FOR AY 2001- 02, UNDER IDENTICAL FACTS AND CIRCUMSTANCES. SINCE THE ISSUE UNDER CONSIDERATION IS MATERIALLY IDENTICAL TO THAT OF TH E CASE DECIDED BY THE ITAT (SUPRA), WE RESPECTFULLY FOLLOW THE SAME AND I N THE LIGHT OF THAT WE SET ASIDE THE ORDER OF THE CIT(A) AND CANCEL THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, BOTH THE APPEAL OF THE ASSESSEE I S ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 20 TH MAY, 2011. SD/- SD/- (R.S. SYAL) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 20 TH MAY, 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV