RAMAKANT SUKARYA KATKAR, PUNE V. ITO 26(1)(4),

ITA 3749/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48881 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y P PANDIT; D Y PANDIT
• Keywords: Condonation of delay; Ignorance of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA. NO. 3749/MUM/2010 ASSESSMENT YEAR 2002-2003 ITA. NO. 3750/MUM/2010 ASSESSMENT YEAR 2003-2004 ITA. NO. 3751/MUM/2010 ASSESSMENT YEAR 2004-2005 RAMAKANT SUKARYA KATKAR VIRAR (E), VASAI 401 303 PAN AAGPK7647D VS. I.T.O. 26 (1) (4) MUMBAI (APPELLANT) (RESPONDENT) FOR APPELLANT : S/SHRI Y.P. PANDIT & D.Y. PANDIT FOR RESPONDENT ; SHRI SENTHIL KUMAR (DR) ORDER PER D. MANMOHAN, V.P. 1. THESE THREE APPEALS, FILED AT THE INSTANCE OF T HE ASSESSEE, ARE DIRECTED AGAINST THE ORDERS DATED 23-9-2009, P ASSED BY THE CIT(A)-28, MUMBAI AND THEY PERTAIN TO THE ASSESSMEN T YEARS 2002- 2003 TO 2004-2005. 2. PENALTY LEVIED BY THE ASSESSING OFFICER AND CON FIRMED BY THE CIT(A) WAS CHALLENGED BEFORE US ON THE GROUND T HAT THERE WAS NO WILFUL INTENTION TO CONCEAL THE INCOME AND THUS PEN ALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) OF THE ACT IS LIABLE TO BE CANCELLED. ADMITTEDLY, ORDERS PASSED BY THE CIT(A) IN RESPECT OF THE YEARS UNDER CONSIDERATION WERE SERVED UPON THE ASSE SSEE ON THE SAME DATE AND APPEALS WERE FILED AGAINST THOSE ORDERS ON 10-5-2010 WITH A PETITION FOR CONDONATION OF DELAY OF 116 DAYS. LEAR NED COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, SUBMITTED THAT THE ITAT, MUMBAI BENCHES IN THE FOLLOWING CASES HAVE CONSISTENTLY TA KEN A STAND THAT PENALTY IS NOT IMPOSABLE UNDER SECTION 271 (1) (C) OF THE ACT IN THE PECULIAR CIRCUMSTANCES IN WHICH EMPLOYEES OF BHARAT PETOLEUM CORPORATION ARE PLACED : 2 1. MR. MANGHAL GAONKAR & OTHERS. VS. ITO ITA. NO. 5879/MUM/2009. A BENCH 2. SHRI RAVINDRA L. SATHE VS. ITO ITA.NO. 2828/MUM/200 8 D BENCH 3. SMT. VERONICA J.CORREIA VS. ITO ITA.NO. 5986, 5987 & 5988/MUM/2009 4. SHRI ADRIN J.AUGUSTINE VS. ITO ITA. NO. 1922 TO 1924/MUM/2010 A BENCH 5. MR. KESHAVAN P. PILLAY VS. ITO ITA. NO. 1595/MUM/20 10 A BENCH 6. MR. VIKRAM BHIVAJI ZUMBRE VS. ITO ITA. NO. 2368/MUM/2010 F BENCH 7. WINSTON I. RODRIGUES VS. ITO ITA. NO. 1606. 1572 AN D 1574/MUM/2010 G BENCH 8. SHALESH R.PRAJAPATI VS. ITO ITA. NO. 1708/MUM/2010 D BENCH. 9. MR. DILIP N. PHATAK ITA. NO. 1931/MUM/2010 AND MR. RAJESH V. GAD ITA. NO. 1932/MUM/2010 D BENCH. 10. MR. CHANDRAKANT K. MAHADKAR ITA. NO. 1918 TO 1921/MUM/2010 C BENCH 3. IN AN AFFIDAVIT DATED 10 TH APRIL, 2010 IT WAS STATED THAT DUE TO IGNORANCE OF LAW ASSESSEE COULD NOT PREFER A PPEALS INTIME AND RECENTLY DURING A MEETING WITH UNION LEADERS CONCER NED TAX LAWYER/EXPERT INFORMED THAT PENALTIES LEVIED ARE NO T IN ACCORDANCE WITH LAW AND APPEAL HAS TO BE PREFERRED BEFORE THE APPELLATE TRIBUNAL. LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASSESSE E, REQUESTED FOR CONDONATION OF DELAY ON THE GROUND THAT REASONS FOR DELAY IN FILING THE APPEAL ARE BONAFIDE AND THE ASSESSEE HAVING A STRON G CASE ON MERITS JUSTIFIES LIBERAL APPROACH AND DEMANDS ADMISSION OF THE APPEALS BY CONDONING THE DELAY RATHER THAN GOING BY THE TECHNI CALITIES, AS STATED BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECT OR, LAND 3 ACQUISITION VS. MST. KATIJI AND OTHERS (1987) 167 I TR 471 (S.C). HE PLACED RELIANCE ON THE AFORECITED ORDERS ON MERITS TO CONTEND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND THUS PENALTY LEVIED BY THE ASSESSING OFFICER IS NOT IN ACCORDANC E WITH LAW. 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE OR DERS PASSED BY THE TAX AUTHORITIES. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE RECORD. HAVING REGARD TO THE CIRCUMSTAN CES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENT CAUSE FOR THE DELAY IN FILING THE APPEALS. WE THEREFORE, CONDONE THE DE LAY AND ADMIT THE APPEALS. AS REGARDS THE LEVY OF PENALTY, IT IS NOTI CED THAT UNDER IDENTICAL CIRCUMSTANCES THE ITAT, MUMBAI BENCHES HA VE CONSISTENTLY TAKEN A STAND THAT UNDER THE CIRCUMSTANCES IT CANNO T BE SAID TO BE A CASE OF WILFUL CONCEALMENT OF INCOME AND ACCORDINGL Y, CANCELLED THE PENALTY LEVIED BY THE ASSESSING OFFICER. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE HOLD THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY. THEREFORE, WE CANCEL THE PENALTY OF RS.9,199/- (ASSESSMENT YEA R 2002-2003), RS.42,417/- (ASSESSMENT YEAR 2003-2004) AND RS.14,6 33/- (ASSESSMENT YEAR 2004-2005). AS PRONOUNCED IN THE O PEN COURT, APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-05-2011. SD/- SD/- (T.R. SOOD) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 23 RD MAY, 2011 VBP/- 4 COPY TO 1. RAMAKANT SUKARYA KATKAR, C/101, POONAM PARK, MAN VELPADA ROAD, VIRAR (E), VASAI 401 303. PAN AAGPK7647D C/O. MR. D.Y. PANDIT, ADVOCATE, 1187/10, KRUPA, SHIVAJINAGAR, PUNE 411 055. 2. ITO 26 (1) (4), MUMBAI. 3. CIT(A)-28, MUMBAI 4. CIT, MUMBAI CITY-26, MUMBAI 5. DR D BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.