KRISHNAKANT SANOO BOBHATE, MUMBAI V. DCIT - CC- 1 THANE, THANE

ITA 3724/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6064 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 153A; 201; 132

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI PAWAN SINGH (JM) I.T.A. NO. 3724/MUM/2018 (ASSESSMENT YEAR 2008 - 09) I.T.A. NO. 3723/MUM/2018 (ASSESSMENT YEAR 2010 - 11) I.T.A. NO. 3722 /MUM/ 201 8 (ASSESSMENT YEAR 20 12 - 1 3 ) SHRI KRISHANAKANT SANOO BOBHATE A/202, BUILDING NO. 83 SINDHU SOCIETY, TILAK NAGAR CHEMBER, MUMBAI PAN : AAIPB3766A V S . DCIT CC - 1 THANE ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI MANOJ KUMAR SINGH DATE OF HEARI NG 8 . 8 . 201 9 DATE OF PRONOUNCEMENT 1.10 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THESE ARE APPEALS BY THE ASSESSEE DIRECTED AGAINST THE COMMON ORDER OF LEARNED CIT(A) DATED 29.3.2018 AND PERTAIN TO A.Y. 2008 - 09, 2010 - 11 & 2012 - 13. 2. THE ISS UE RAISED IS LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT AS UNDER : - 2008 - 09 RS. 2,97,910/ - 2010 - 11 RS. 8,00,878/ - 2012 - 13 RS. 42,553/ - THERE WAS SEARCH ACTION U/S. 132 OF THE I.T. ACT IN THE CASE OF THE ASSESSEE AND UNDISCLOSED INCOME WAS ADMITTED BY THE ASSESSEE. THE ASSESSEE FILED RETURN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S. 153A OF THE ACT IN WHICH UNDISCLOSED INCOME WAS OFFERED TO TAX. ASSESSING OFFICER COMPLETED THE ASSESSMENT ACCEPTING THE INCOME RETURNED. THE ASSESSING OFFICER NOTED THAT THE SAID UNDISCLOSED INCOME WAS OFFERED BY THE ASSESSEE PURSUANT TO SEARCH SHRI KRISHANAKANT SANOO BOBHATE 2 ACTION AND HENCE PENALTY WAS INITIATED FOR CONCEALING INCOME/FURNISHING INACCURATE DETAILS. 3. IN THE PENALTY ORDER ASSESSING OFFICER RELIED UPON THE DECISION OF HON'BLE SUPREME CO URT IN THE CASE OF MAK DATA P. LTD. VS. CIT ( C IVIL APPEAL NO . 9772 OF 2013 DATED 30.10.2013). FURTHER THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS FAILED TO OFFER ANY SATISFACTORY EXPLANATION THEREFORE EXPLANATION (1) TO SECTION 271(1)(C) WAS ATTRACTE D. HE HELD THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. 4. UPON ASSESSEES APPEAL LEARNED CIT(A) CONFIRMED THE PENALTY BY HOLDING THAT THE ASSESSING OFFICER HAS RIGHTLY INVOKED PROVISIONS OF SECTION 271(1)(C) OF THE ACT RELATING TO CO NCEALMENT OF INCOME. 5. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE NOTICE. LEARNED DEPARTMENTAL REPRESENTATIVE SU BMITTED THAT PENALTY IN THIS CASE HAS BEEN RIGHTLY LEVIED IN AS MUCH AS EXPLANATION 3 TO SECTION 271(1)(C) IS APPLICABLE HERE. HENCE, HE SUBMITTED THAT PENALTY SHOULD BE CONFIRMED. 7. UPON CAREFUL CONSIDERATION, WE FIND THAT THE REVENUE IN THIS CASE IS N OT AT ALL SURE AS TO WHAT IS THE CASE AGAINST THE ASSESSEE. THE ASSESSEE HAS DISCLOSED THE INCOME IN THE RETURN OF INCOME FILED UNDER SECTION 153A. THE SAME HAS BEEN DULY ACCEPTED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS HELD THAT SINCE THE ASSE SSEE HAS DISCLOSED INCOME PURSUANT TO SEARCH UNDER SECTION 132 OF THE ACT, THE ASSESSEE HAS CONCEALED/FURNISHED INACCURATE PARTICULARS OF INCOME. IN THE PENALTY ORDER THE ASSESSING OFFICER HAS LEVIED PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME IN AS MUCH AS ASSESSING OFFICERS OPINION EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT IS APPLICABLE. LEARNED CIT(A) CONFIRMED THE PENALTY BY OBSERVING THAT THE ASSESSING OFFICER HAS LEVIED PENALTY FOR CONCEALMENT OF INCOME. NOW, THE LEARNED DEPARTMENTAL REPRESENTATIVE IS SUBMITTING THAT EXPLANATION 3 TO SECTION 271(1)(C) IS APPLICABLE HERE. WE FIND THAT IN THIS CASE THERE IS NO APPLICATION OF MIND BY THE AUTHORITIES BELOW. THE ASSESSING OFFICER IS LEVYING SHRI KRISHANAKANT SANOO BOBHATE 3 PENALTY FOR CONCEALMENT/FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER IN THE PENALTY ORDER IS LEVYING PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. LEARNED CIT(A) IS CONFIRMING THE PENALTY ON THE PREMISE THAT THE ASSESSING OFFICER HAS LEVIED PENALTY FOR CONCEALMENT OF I NCOME. 8. UPON CAREFUL CONSIDERATION, WE ARE OF THE OPINION THAT THE PENALTY IN THIS CASE IS NOT LEVIABLE AS THERE IS LACK OF APPLICATION OF MIND BY THE AUTHORITIES BELOW IN AS MUCH AS THERE IS NO FINDING AS TO WHAT IS THE CHARGE AND WHICH ASPECT OF THE PROVISION OF SECTION 271(1)(C), THE ASSESSEE IS GUILTY OF INFRACTION. IN THIS VIEW OF THE MATTER IN OUR CONSIDERED OPINION THE ASSESSEE CANNOT BE VISITED WITH THE RIGOURS OF PENALTY U/S. 271(1)(C) OF THE ACT. HENCE, WE DIRECT THAT THE PENALTY IN THIS CASE SHOULD BE DELETED. 9. IN THE RESULT, THE APPEALS BY THE ASSESSEE ARE ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1.10 . 201 9 . SD/ - SD/ - (PAWAN SINGH) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 / 10 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI