CLASSIC PROPERTIES DEVELOPMENT & FINANCE P.LTD, MUMBAI V. ITO 6(2)(1), MUMBAI

ITA 404/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3616 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-04-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAKASH K JOTWANI
• Keywords: Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . , / BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND . , SHRI D.KARUNAKAR RAO, ACCOUNTANT MEMBER . / ITA NO.404/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2007-08 CLASSIC PROPERTIES DEVELOPMENT & FINANCE PVT. LTD., 105, DALAMAL TOWER, PLOT NO.211, NARIMAN POINT, MUMBAI - 400 021. ! ! ! ! / VS. THE INCOME TAX OFFICER 6(2)(1), MUMBAI. # ./ $% ./ PAN/GIR NO. : AAACC3954G ( #& / APPELLANT ) .. ( '(#& / RESPONDENT ) #& ) / APPELLANT BY: SHRI PRAKASH K. JOTWANI '(#& * ) / RESPONDENT BY : SHRI RAJARSHI DWIVEDY ! * + / DATE OF HEARING : 18/04/2013 ,-' * + / DATE OF PRONOUNCEMENT : 18/04/2013 . / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-12 MUMBAI DATED 25/10/2011 FOR ASSESSMENT YEAR 2007- 08. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961. . / ITA NO.404/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2007-08 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED COMMISSIONER OF INCOME TAX FAILED TO APPRECIATE THE FACT THAT TH ERE IS NO ELEMENT OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME, AS DUE TO MERCANTILE SYSTEM OF ACCOUNTING FOLLOWED BY THE APPELLANT, INTEREST OF RS.4,58,220/- PERTAINING TO PERIOD AFT ER THE 31.3.2007 IS TREATED AS INTEREST RECEIVED IN ADVANCE DURING A.Y. 2007-08 AND IS OFFERED TO TAX IN A.Y 2008-09. 2. IN THE PRESENT CASE CONCEALMENT PENALTY HAS BEEN IMPOSED AT AN ADDITION OF RS.4,58,220/- BEING INTEREST RECEIVED B Y THE ASSESSEE. FROM THE PROFIT & LOSS ACCOUNT IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD SHOWN INTEREST RECEIVED AT RS.2,81,506/-. IT WAS FURTHER OBSERVED THAT IN THE BALANCE SHEET ASSESSEE HAD SHOWN ANOTHER AMOUNT OF RS.4,58, 220/- WHICH WAS SHOWN AS INTEREST RECEIVED IN ADVANCE UNDER THE HEAD CURRENT LIABILITIES. FROM VERIFICATION OF TDS CERTIFICATE DATED 25/12/2006 IS SUED BY M/S. OM HOUSING COMPANY PVT. LTD., WHICH WAS ALSO FILED ALONG WITH THE RETURN, IT WAS NOTICED THAT TOTAL INTEREST PAID WAS SHOWN AT RS.7,39,726/ - FOR A PERIOD FROM 1/4/2006 TO 31/3/2007. NOTING THAT THERE WAS DIFFE RENCE OF RS.4,58,220/-, THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. VIDE LETTER DATED 26/10/2009 IT WAS EXPLAINED THAT THE TOTAL INTEREST RECEIVED BY THE ASSESSEE FROM M/S. OM HOUSING COMPANY PVT. LTD. WAS A SUM OF RS.7,39,726/- WHICH WAS FOR THE PERIOD FROM 20/11/2006 TO 10/11/2007. THEREFORE, INTEREST OF RS.2,81,506/- FOR 132 DAYS FROM 20/4/2006 TO 31/3/2 007 WAS SHOWN IN PROFIT & LOSS ACCOUNT AND INTEREST OF RS.4,58,220/- FOR 22 3 DAYS FROM 1/4/2007 TO 10/11/2007 WAS SHOWN AS INTEREST RECEIVED IN ADVANC E AND HAS BEEN OFFERED TO TAX IN SUBSEQUENT YEAR. ALONG WITH THE SAID REPLY PROFIT & LOSS ACCOUNT AND BALANCE SHEET FOR ACCOUNTING YEAR 2007-08 AND LEDGE R ACCOUNT EVIDENCING INTEREST OF RS.4,58,220/- WAS ALSO FILED. HOWEVER, A.O DID NOT ACCEPT SUCH SUBMISSION ON THE GROUND THAT THE PERIOD MENTIONED IN THE TDS CERTIFICATE IS FROM 1/4/2006 TO 31/3/2007 AND NOT FROM 20/11/2006 TO 10/11/2007. SECONDLY, THE ENTIRE TDS OF RS.1,65,995/- DEDUCTED FROM TOTAL INTEREST OF RS.7,39,726/- HAS BEEN CLAIMED IN THE RETURN FILED FOR ASSESSMENT YEAR 2007- 08 AND NO TDS IS CLAIMED IN THE SUBSEQUENT YEAR, TH EREFORE, ENTIRE INTEREST WAS . / ITA NO.404/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2007-08 3 ASSESSABLE IN THE YEAR UNDER CONSIDERATION UNDER TH E PROVISIONS OF SECTION 199 OF THE INCOME TAX ACT, 1961 (THE ACT). HE ALSO REJ ECTED THE CONTENTION OF THE ASSESSEE THAT TDS CREDITED SHOULD BE GRANTED ON PRO PORTIONATE BASIS AND BALANCE TDS WILL BE CLAIMED BY THE ASSESSEE IN SUBS EQUENT YEAR BY FILING REVISED RETURN. IN THIS MANNER AO HAD ASSESSED ADD ITIONAL INCOME OF THE ASSESSEE OF RS.4,58,220/- ON WHICH PENALTY HAS BEEN IMPOSED. 3. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. F ROM THE PAPER BOOK WE HAVE FOUND THAT ASSESSEE MUCH PRIOR TO THE QUESTION RAISED BY THE AO HAD OFFERED THE AMOUNT OF RS.4,58,220/- IN THE RETURN FILED FOR ASSESSMENT YEAR 2008-09, COPY OF SUCH ACKNOWLEDGEMENT IS FILED AT P AGE 19 OF THE PAPER BOOK AND RETURN WAS FILED ON 25/09/2008. ACCORDING T O EXPLANATION SUBMITTED BY THE ASSESSEE BEFORE AO ALL THESE FACTS WERE MENTION ED. THEREFORE, FROM THE CONDUCT OF THE ASSESSEE WE FOUND THAT IT WAS NEITHE R A CONTUMACIOUS NOR IT IS DISHONEST. THE MISTAKE, IF ANY, IS TECHNICAL MISTA KE, WHERE ON THE TDS CERTIFICATE THE PERIOD IS WRITTEN AS 1/4/2006 TO 31 /3/2007. THE CONTENTION OF THE ASSESSEE IS FURTHER SUPPORTED BY A LETTER ISSUE D FOR DEDUCTION OF THE TAX WHICH IS DATED 18/5/2010, COPY OF WHICH IS FILED AT PAGE 23 OF THE PAPER BOOK IN WHICH IT WAS CLARIFIED BY THE SAID PARTY THAT TH E INTEREST PERTAINS TO THE PERIOD FROM 16/11/2006 TO 12/11/2007. KEEPING IN VIEW ALL THESE FACTS WE FOUND THAT IT IS NOT A FIT CASE WHERE LEVY OF PENA LTY CAN BE SAID TO BE JUSTIFIED. ACCORDINGLY, WE DELETE THE PENALTY AND APPEAL FILE D BY THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/04/201 3 . * ,-' / 0!1 18/04/2013 - * 2 3 SD/- SD /- ( . / D.KARUNAKAR RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0! DATED 18 /04/2013 . / ITA NO.404/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2007-08 4 . . . . * ** * '+45 '+45 '+45 '+45 65'+ 65'+ 65'+ 65'+ / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '(#& / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 582 '+! , , / DR, ITAT, MUMBAI 6. 2 9 / GUARD FILE. .! .! .! .! / BY ORDER, (5+ '+ //TRUE COPY// : :: : / ; ; ; ; $ $ $ $ (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ! . ./ VM , SR. PS