NARGIS S. SHAIKH, MUMBAI V. ITO IT 2(1), MUMBAI

ITA 3707/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3276 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 16-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: G C KAKA
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 3707 /MUM/201 5 : (A.Y : 2010 - 11 ) MS. NARGIS S. SHAIKH C/O. G.C. KAKA & CO., ROOM 502, 5 TH FLOOR, SIR VITHALDAS CHAMBERS, 16, MUMBAI SAMACHAR MARG, FORT, MUMBAI 400 023. PAN : AAOPS5552P (APPELLANT) VS. ITO (IT) - 2(1), MUMBAI (RESPONDENT) ASSESSEE BY : SHRI G.C. KAKA REVENUE BY : SHRI NEIL PHILIP DATE OF HEARING : 21/07/2016 DATE OF PRONOUNCEMENT : 09/09/2016 O R D E R PER SANDEEP GOSAIN, JM : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-57, M UMBAI (IN SHORT CIT(A)) DATED 15.04.2015 FOR A.Y 2010-11 ON THE F OLLOWING GROUNDS OF APPEAL : 1. THE C.I.T(A) 57, UPHELD THE ORDER PASSED U/S 271 (1)(C) BY THE ASSESSING OFFICER ON THE ONLY GROUND THAT THE SAME WAS IN THE KNOWLEDGE OF THE APPELLANT AND THE SAME WAS NOT INADVERTENT. 2. THE C.I.T(A) 57 FAILED TO TAKE INTO CONSIDERATIO N THAT THE APPELLANT FILED THE RETURN ON THE BASIS OF INTEREST CERTIFICATE ISSU ED BY THE BANK AND HAD NO 2 MS. NARGIS S. SHAIKH ITA NO. 3707/MUM/2015 INTENTION TO DEFRAUD THE REVENUE AS SHE HAS VOLUNTARI LY PAID ADVANCE TAX OF RS.4,50,000/-. 3. THE C.I.T(A) 57 FAILED TO ACCEPT THE EXPLANATION OFFERED BY THE APPELLANT AS BONAFIDE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FILED A RETURN OF INCOME ON 8.2.2011 DETERMINING TOTAL INCOME AT R S.11,46,660/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) AND SUBSEQUENTLY THE CASE WAS SELECTED F OR SCRUTINY THROUGH CASS AS ASSESSEE HAS RECEIVED INTEREST FROM SYNDICA TE BANK AMOUNTING TO RS.14,24,721/- DURING FINANCIAL YEAR 2009-10 REL EVANT TO A.Y 2010-11. ACCORDINGLY, AFTER SERVING STATUTORY NOTICES AND SE EKING REPLY OF THE ASSESSEE, ORDER OF ASSESSMENT WAS PASSED THEREBY MA KING ADDITION, INTER ALIA , ON THE GROUND OF DIFFERENCE OF INTEREST AMOUNT RE CEIVED AND OFFERED BY THE ASSESSEE AMOUNTING TO RS.2,81,769/-. THEREAFTER, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT AND AFTER SEEKING REPLY FROM THE ASSESSEE, ORDER OF PENALTY U /S 271(1)(C) OF THE ACT LEVYING PENALTY OF RS.87,066/- WAS PASSED AGAIN ST THE ASSESSEE. AGGRIEVED BY THE ORDER IMPOSING PENALTY, ASSESSEE P REFERRED APPEAL BEFORE THE CIT(A) AND CIT(A) AFTER HEARING THE CASE OF BOTH THE PARTIES HAD DISMISSED THE APPEAL AND UPHELD THE ORDER OF LE VY OF PENALTY. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE HAS PREF ERRED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREINABO VE. 3. GROUND NOS. 1 TO 3 ARE INTERCONNECTED AND THEREF ORE, WE DECIDED TO DISPOSE OF THE SAID GROUNDS BY A COMMON ORDER. 3 MS. NARGIS S. SHAIKH ITA NO. 3707/MUM/2015 3.1 AT THE VERY OUTSET, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A PERMANENT RESIDENT OF CANADA AND SHE IS SUFFERING FROM MULTIPLE SCLEROSIS AND SHE IS UNABLE TO WRITE OR SI GN, THEREFORE, THE RETURN WAS FILED BY HER SISTER ON HER BEHALF. THE SISTER BEFORE FILING THE RETURN OF INCOME OBTAINED A CERTIFICATE FROM SYNDIC ATE BANK, KALBADEVI BRANCH WHEREIN THEY HAVE MENTIONED THAT THE INTERES T AMOUNTING TO RS.11,42,952/- IS BEING PAID TO HER AND A SUM OF RS .1,44,946/- IS BEING DEDUCTED AS TDS FROM THE SAID INTEREST. AFTER OBTA INING THE SAID CERTIFICATE FROM THE BANK, SISTER OF THE ASSESSEE F ILED THE SAME BEFORE THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED BY THE LD. AR THAT WHILE FILING THE RETURN, SISTER OF THE ASSESSEE HAD FULLY RELIED ON THE BANK CERTIFICATE ISSUED BY SYNDICATE BANK WHEREIN THE BA NK HAS STATED THAT INTEREST OF RS.11,42,952/- WAS PAID AFTER DEDUCTION OF TAX AT SOURCE. THE LD. AR FURTHER SUBMITTED THAT THE BANK HAD ISSU ED THE CERTIFICATE ON 7.2.2011, A DAY BEFORE FILING OF THE RETURN OF INCO ME BY THE ASSESSEE WHEREAS THE BANK HAS FILED TDS RETURN IN MAY, 2010 WHEREIN THEY HAVE DECLARED THAT THEY HAVE PAID INTEREST OF RS.14,24,7 21/-. THEREFORE, RELYING ON THE CERTIFICATE ISSUED BY THE BANK, ASSE SSEE HAS NOT CONCEALED OR FURNISHED INACCURATE PARTICULARS OF INCOME. 3.2 ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ER PASSED BY THE REVENUE AUTHORITIES. 3.3 WE HAVE HEARD THE COUNSEL OF BOTH SIDES AND WE HAVE ALSO CONSIDERED THE DOCUMENTS PLACED ON RECORD AS WELL A S THE ORDER PASSED BY THE LOWER AUTHORITIES. AFTER APPRECIATING THE F ACTS OF THE PRESENT CASE, WE NOTED THAT THE ASSESSEE IS A PERMANENT RES IDENT OF CANADA AND 4 MS. NARGIS S. SHAIKH ITA NO. 3707/MUM/2015 IS SUFFERING FROM MULTIPLE SCLEROSIS AND IS UNABLE TO WRITE AND SIGN, THEREFORE, THE RETURN WAS FILED BY HER SISTER ON HE R BEHALF. THE SISTER OF THE ASSESSEE HAS FULLY BELIEVED AND RELIED UPON THE CERTIFICATE ISSUED BY THE BANK AND THE SAID CERTIFICATE WAS SUBMITTED BEF ORE THE ASSESSING OFFICER. PRIMA FACIE TAKING INTO CONSIDERATION THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND CONSIDERING T HE PHYSICAL CONDITION OF THE ASSESSEE IT APPEARS THAT THE SISTE R OF THE ASSESSEE HAS BONA FIDE RELIED UPON THE CERTIFICATE OF THE BANK AND HAS NO T CONCEALED OR FURNISHED INACCURATE PARTICULARS OF INCOME INTEN TIONALLY. FROM THE FACTS AND THE ARGUMENTS OF THE PRESENT CASE, PRIMA FACIE THE EXPLANATION PUT FORTH BEFORE US APPEARS TO BE BONA FIDE . RELYING ON THE ORDER OF COORDINATE MUMBAI BENCH OF THE TRIBUNAL IN CIT V. SOMANY EVERGREEN KNITS LTD. (ITA NO. 1332/MUM/2011), WHICH WAS ALSO UPHELD BY THE HON'BLE HIGH COURT VIDE ORDER DATED 21.3.201 3 AS SUBMITTED BY THE LD. AR, WE HOLD THAT THE EXPLANATION OFFERED BY THE SISTER OF THE ASSESSEE IS BONA FIDE AND CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETE THE PENALTY AN D ACCEPT THE APPEAL. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER, 2016. SD/- SD/- S D S D SD/ - SD/ - (R.C. SHARMA) ACCOUNTANT MEMBER (SANDEEP GOSAIN) JUDICIAL MEMBER MUMBAI, DATE : 9 TH SEPTEMBER, 2016 * SSL * 5 MS. NARGIS S. SHAIKH ITA NO. 3707/MUM/2015 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI