Appeal details
Counselvise Citation
[2015] 134 COUNSELVISE.COM (IT) 2311 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-12-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Assessment Year
2009-2010
Appeal Filed On
29-05-2014
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . , , !' #$, % , & BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.3842/M/14 ( %' ( )( / ASSESSMENT YEAR: 2008-09) BIPIN B. SHAH 302/A, B-WING, VICTORY PARK, ROSHAN NAGAR, CHANDAVARKAR LANE, BORIVALI(WEST), MUMBAI - 400092 ' / VS. ACIT 25(1) C-11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI / I.T.A. NO.3843/M/14 ( %' ( )( / ASSESSMENT YEAR: 2009-10) BIPIN B. SHAH 302/A, B-WING, VICTORY PARK, ROSHAN NAGAR, CHANDAVARKAR LANE, BORIVALI(WEST), MUMBAI - 400092 ' / VS. ACIT 25(1) C-11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI ./ ./ PAN/GIR NO. : ABHPS7041P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 26.11.2015 !' /DATE OF PRONOUNCEMENT: 04.12.2015 #$ / O R D E R PER AMARJIT SINGH, JM: ASSESSEE BY: SHRI HITESH M. SHAH DEPARTMENT BY: SHRI SUMIT KUMAR ITA NO. 3842& 3843/M/14 A.Y. 2008-09 &2009-10 2 THIS ORDER SHALL DISPOSED OFF BOTH THE APPEALS MEN TIONED ABOVE AGAINST THE ORDER DATED 23.04.2014 PASSED BY THE LE ARNED CIT(A) 35, MUMBAI RELEVANT TO THE A.Y. 2008-09 & 2009-10. BOTH THE A PPEALS ARE BEING TAKEN TOGETHER BEING THE PARTIES ARE THE SAME AND THE MATTER OF CO NTROVERSY IS ALSO THE SAME THEREFORE, ARE BEING TAKEN UP TOGETHER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS OF THE CASES ARE THAT THE ASSESS EE IN HIS RETURN FOR THE A.Y. 2008-09 HAD SHOWN THE EXPENDITURE TO THE TUNE OF RS .13,60,000/- AND THE PARTY AGAINST WHOM THE EXPENDITURE WAS SHOWN CONFIRMED TH E AMOUNT TO THE TUNE OF RS.81,982/-. THEREFORE THE REMAINING AMOUNT TO THE TUNE OF RS.12,78,018/- WAS CONSIDERED TOWARDS INCOME OF ASSESSEE. SUBSEQUENTL Y, THE PENALTY PROCEEDINGS U/S. 271(1)(C) WAS INITIATED AND THE PENALTY TO THE TUNE OF RS.4,34,398/- WAS IMPOSED. SO FAR AS THE OTHER APPEAL IS CONCERNED, THE ASSESSEE FILED THE RETURN SHOWING HIS INCOME TO THE TUNE OF RS.54,38,940/-. ASSESSING OFFICER RECEIVED THE INFORMATION FROM THE ITO WARD 19(1)(4), MUMBAI THAT THE ASSESSEE SHOWED THE EXPENDITURE TO THE TUNE OF RS.13,62,227/- AGAINST M /S. STIVAN CONSTRUCTION WHO DID NOT CONFIRM THE SAME. THEREAFTER, THE PENALTY TO T HE TUNE OF RS.2,70,516/- WAS IMPOSED. THE PENALTY ORDERS WERE CHALLENGED AND TH E LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY VIRTUE OF ORDER DATED 23.04.2014. THEREFORE, FEELING AGGRIEVED THE PRESENT APPEALS HAS BEEN FILED. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE CASE FILES CAREFU LLY. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE DID NO T CONCEAL THE PARTICULARS OF HIS INCOME NOR FURNISHED ANY INACCURATE PARTICULARS IN HIS RETURN THEREFORE, NO PENALTY WAS LEVIABLE UPON HIM. IT IS ARGUED THAT THE ASSES SEE HAD ALREADY DEDUCTED THE T.D.S. ON THE AMOUNT PAID TO M/S. STIVAN CONSTRUCTI ON AND IF M/S. STIVAN CONSTRUCTION FAILED TO REFLECT THE SAID AMOUNT IN T HE ACCOUNT BOOKS THEN IN THE SAID ITA NO. 3842& 3843/M/14 A.Y. 2008-09 &2009-10 3 CIRCUMSTANCES NO PENALTY IS LEVIABLE UPON THE ASSES SEE AND ALSO PLACED RELIANCE UPON THE LAW SETTLED IN CIT VS. RELIANCE PETROPRODU CTS (322 ITR 158)(SC). ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED ORDER OF LEARNED CIT(A). 4. BY GOING THROUGH THE FILE PROPERLY AND PERUSED T HE RECORD IT CAME INTO THE NOTICE THAT THE ASSESSEE HAD DEDUCTED THE T.D.S. O N THE AMOUNT OF RS.13,60,000/- SHOWN TO BE PAID TO M/S. STIVAN CONSTRUCTION IN THE A.Y. 2008-09 AND ALSO DEDUCTED THE TAX ON THE AMOUNT OF RS.13,62,227/- PA ID TO M/S. STIVAN CONSTRUCTION IN THE A.Y. 2009-10. APPARENTLY, THERE IS NO CONCE ALMENT BY THE APPELLANT AND INCOME TAX HAD ALREADY BEEN DEDUCTED AND PAID ON TH E AMOUNT IN QUESTION WHICH HAS NOT BEEN SHOWN BY THE M/S. STIVAN CONSTRUCTION IN THEIR BOOKS OF ACCOUNTS. THE ORDERS PASSED BY LEARNED CIT(A) IN QUESTION SPE AKS THAT THE ASSESSEE HAD ALREADY DEDUCTED THE T.D.S. ON THE AMOUNT WHICH HAS BEEN PAID TO M/S. STIVAN CONSTRUCTION. THE ASSESSEE DID NOT FURNISH INACCUR ATE PARTICULARS IN ITS RETURN NOR CONCEALED ANYTHING TO EVADE THE TAX. NO DOUBT, THE ENTRIES OF THE AMOUNT WHICH HAS BEEN PAID TO M/S. STIVAN CONSTRUCTION HAS NOT BEEN REFLECTED BY THEM IN THEIR BOOKS OF ACCOUNT BUT HOW THE ASSESSEE IS RESPONSIBL E FOR THAT IT IS NOT APPARENT ON RECORD. THE ASSESSEE NOWHERE EVADED TAX NOR FURNIS HED ANY INACCURATE PARTICULARS IF ANY. BY RELYING THE LAW SETTLED IN CIT VS. RELI ANCE PETROPRODUCTS (322 ITR 158)(SC) WE ARE OF THE VIEW THAT THE ORDERS IN QUE STION ARE NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW. ACCORDINGLY, WE S ET ASIDE BOTH THE ORDERS IN QUESTION BEING THE CASE OF THE ASSESSEE IS NOT THE CASE TO LEVY THE PENALTY. ITA NO. 3842& 3843/M/14 A.Y. 2008-09 &2009-10 4 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER , 2015. SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 4 TH DECEMBER, 2015 MP MP MP MP + , -%'#. /.)' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. +' / BY ORDER, - & //TRUE COPY// 0/$ ! (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI
