PLAZA CASTING P.LTD ( NOW KNOWN AS JMD CASTING P. LTD), MUMBAI V. DCIT CIR 7(1), MUMBAI

ITA 3677/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78695 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: CHAMPA L PUROHIT
• Keywords: Onus to prove; Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & DR.STM PAV A LAN , J M ITA NO. 367 7 / MUM/20 1 2 ( ASSESSMENT YEAR : 200 7 - 0 8 ) M/S PLAZA CASTINGS PVT., (NOW KNOWN AS JMD CASTINGS PVT. LTD.), F - 59, 1 ST FLOOR, CIN E MAX WONDERMALL, GHODBUNDER ROAD, THANE(W) - 400 607 VS. DCIT , CIR C LE - 7 (1), MUMBAI PAN/GI R NO. : A A C C P 8352 P ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : CHAMPA L. PUROHIT /REVENUE BY : MR. M.L.PERUMAL DATE OF HEARING : 3 RD APRIL , 201 4 D ATE OF PRONOUNCEMENT : 16 TH APRIL , 201 4 O R D E R PER R.C.SHARMA ( A .M.) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) , DATED 3 - 2 - 2012 FOR THE ASSESSMENT YEAR 200 7 - 0 8 , IN THE MATTER OF IMPOSITION OF PENALTY UNDE R SECTION 271(1)(C) OF THE I.T. ACT. HEARD ON CONDONATION OF DELAY 2 . THIS APPEAL IS BARRED BY THREE DAYS. LEARNED AR HAS FILED AN AFFIDAVIT OF SHRI AJAY S SINGHAL, DIRECTOR OF M/S PLAZA CASTING PVT. LTD.(NOW KNOWN AS JMD CASTING PVT. LTD.) , WHEREIN IT HAS BEEN SUBMITTED THAT DUE TO HIS ILLNESS, HE COULD NOT FILE THE PRESENT APPEAL IN TIME AND THREE DAYS OF DELAY IN FILING OF THE PRESENT APPEAL HAS BEEN ITA NO. 3677 / 1 2 2 OCCURRED. THEREFORE, THE SAME MAY KINDLY BE ALLOWED AND APPEAL MAY BE HEARD ON MERIT. 3. LEARNED DR DID NOT OPPOSE TO THE ABOVE SUBMISSION OF THE LEARNED AR. 4. CONSIDERING THE SUBMISSIONS MADE BY THE LEARNED AR, IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY OF THREE DAYS IN FILING THE APPEAL. HEARD ON MERIT 5. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECOR D PERUSED. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE AO MADE ADDITION OF RS. 3 ,92,508/ - IN RESPECT OF LOAN CREDITORS . C HARITY AND DONATIONS OF RS. 1,63,101/ - WAS ALSO ADDED BACK TO THE INCOME OF THE ASSESSEE. FOR BOTH THE ADDITIONS THE AO LEVIED PENALTY UNDER SECTION 271(1)(C) . 6. IT WAS CONTENDED BY THE LEARNED AR THAT ASSESSEE HAS PROVIDED PAN NUMBER AND ADDRESS OF THE LOAN CREDITORS TO THE AO. HOWEVER, DUE TO NON - COOPERATION OF THE CREDITORS THEIR CONFIRMATION COULD NOT BE FILED. AS PER LEARNED AR SIN CE THE ASSESSEE HAS FILED THE PAN NUMBER AND THE ADDRESS OF THE LOAN CREDITORS AND IT WAS INCUMBENT ON THE AO TO SATISFY HIMSELF ABOUT THE GENUINENESS BY SENDING SUMMONS AND CALLING THE PARTIES. THE ASSESSEE HAS NEITHER CONCEALED ANY INCOME NOR FILED ANY I NACCURATE PARTICULARS OF INCOME. 7. ON THE OTHER HAND, LEARNED DR CONTENDED THAT BY NOT FILING THE CONFIRMATION, THE ASSESSEE HAS NOT DISCHARGED ITS INITIAL ONUS, ACCORDINGLY PENALTY WAS CORRECTLY LEVIED BY THE AO. ITA NO. 3677 / 1 2 3 8. WITH REGARD TO THE DISALLOWANCE OF CHA RITY AND DONATION, THE CONTENTION OF THE LEARNED AR WAS THAT PAYMENT ON ACCOUNT OF CHARITY AND DONATION WAS DEBITED IN THE P&L ACCOUNT, HOWEVER, IN THE COMPUTATION OF INCOME, IT WAS NOT AGAIN ADDED SO AS TO QUALIFY THE SAME UNDER SECTION 80G. AS PER LEARNE D AR NOWHERE THE AO HAD DOUBTED THE GENUINENESS OF THE CHARITY AND DONATION SO GIVEN, ACCORDINGLY, MERE DISALLOWANCE OF CHARITY AND DONATION COULD NOT BE MADE THE REASON FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. 9. WE HAVE CONSIDER ED RIVAL CONTENTIONS, GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT ASSESSEE HAS GIVEN LOAN TO THREE PERSONS AS MENTIONED BY AO AT PAGE 1 OF HIS ORDER. EVEN THOUGH ASSESSEE HAS FILED THE PAN NUMBER, BUT THE CONFIRMATION OF THE RESPECTIVE CREDITORS COULD NOT BE FILED. BY NOT FILING THE LOAN CONFIRMATION, THE ASSESSEE WAS UNABLE TO DISCHARGE HIS PRIMARY ONUS TO PROVE THE IDENTITY , GENUINENESS AND CREDITWORTHINESS OF THE LOAN CREDITORS. ACCORDINGLY, WE DO NOT FIND ANY INFIRMIT Y IN THE ORDER OF THE AO FOR LEVY OF PENALTY FOR ADDITION OF SUCH LOAN CREDITORS. 10. WITH RESPECT OF AMOUNT GIVEN FOR CHARITY DONATION, THE SAME WAS DEBITED IN THE P&L ACCOUNT. NEITHER ACTUAL PAYMENT NOR GENUINENESS OF THE CHARITY AND DONATION WAS IN DIS PUTE, MERE FAILURE OF ASSESSEE TO ADD BACK THE SAME WHILE COMPUTING THE TOTAL INCOME AND MAKE A SEPARATE CLAIM UNDER SECTION 80G, IS NOT SUFFICIENT FOR LEVY OF PENALTY UNDER SECTION 271(1)(C). AS THE ASSESSEE HAS MADE FULL DISCLOSURE OF ITA NO. 3677 / 1 2 4 AMOUNT GIVEN FOR CH ARITY AND DONATION IN THE P&L ACCOUNT, THERE IS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY THE PARTICULARS OF INCOME. ACCORDINGLY, THE AO WAS NOT JUSTIFIED IN LEVYING PENALTY WITH RESPECT TO THE DISALLOWANCE OF CHARITY AND DONATIONS. 11 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED IN PART . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH APRIL . 201 4 . 16 TH APRIL ,2014 SD/ - SD/ - ( ) ( DR. S.T.M.PAV A LAN ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 16 /04 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, M UMBAI 6. GUARD FILE. //TRUE COPY//