HARI BANDU SONONE, MUMBAI V. ITO 26(2)(1), MUMBAI

ITA 4499/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49565 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2003-2004
• Appeal Filed On: 01-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ACHALA VAIDYA

Judgement Text

1 ITA NO. 4499/MUM/2010 (ASST YEAR 2003-04 ) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P M JAGTAP, AM & SHRI VIJAY PAL RAO, J M ITA NO. 4499/MUM/2010 (ASST YEAR 2003-04 ) MR HARI BANDU SONONE A/16 VINAY BUILDING GURU MANDIR ROAD SARASAT COLONY DOMIVILI (EAST) 421 201 VS THE INCOME TAX OFFICER 26(2)(1), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AHMPS 3274K ASSESSEE BY SHRI ACHALA VAIDYA REVENUE BY SHRI V V SHASTRI PER VIJAY PAL RAO, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 13.4.2010 OF THE CIT(A) ARISING FROM THE PENALTY LE VIED U/S 271(1) ( C) OF THE I T ACT FOR THE ASSESSMENT YEAR 2003-04. 2 THE ONLY ISSUE ARISES IN THIS APPEAL IS WHETHER I N THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)( C) OF THE ACT. 3 THE ASSESSEE IS AN EMPLOYEE OF BHARAT PETROLEUM C ORPORATION LTD (BPCL). THE ASSESSING OFFICER FOUND THAT THE EMPLOYEES IN A LAR GE SCALE HAD FILED THEIR RETURNS OF INCOME AS PER THE TDS CERTIFICATE IN FORM 16 AND HA D NOT BEEN DISCLOSED THE LEASE RENT AND MAINTENANCE CHARGES RECEIVED THEM DURING T HE RELEVANT PERIOD. THE ASSESSING OFFICER MADE AN ADDITION OF THE LEASE REN T AND MAINTENANCE CHARGES 2 ITA NO. 4499/MUM/2010 (ASST YEAR 2003-04 ) RECEIVED BY THE ASSESSEE TREATING THE SAME AS INCOM E FROM HOUSE PROPERTY AND ALSO INITIATED PENALTY PROCEEDINGS. 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE FIND THAT THIS ISSUE OF LEVY OF PENALTY HAS BEEN REPEATEDLY CONSIDERED AND DECIDED BY THE TRIBUNAL IN VARIOUS APPEALS RELATING TO THE EMPLOYEES OF BPCL. WE FIN D THE TRIBUNAL IN THE CASE OF CHANDAKANT K MAHADKAR VS ITO IN ITA NOS 1918 TO 192 1/MUM/2010 VIDE ORDER DATED 11.2.2011 DECIDED THE ISSUE IN FAVOUR OF THE ASSESS EE. THE RELEVANT PORTION OF THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL READ S AS UNDER: 6 THE LD COUNSEL FOR THE ASSESSEE, AT THE OUTSET, FI LED THE COPIES OF THE ORDERS OF THE TRIBUNAL IN THE FOLLOWING CASES: S.N O IN THE CASE OF ITA NO. ORDER DATE 1 MR MANGHAL GAONKAR &ORS VS ITO 5879/MUM/2009 27.08.2010 2 SHRI RAVINDRA L SATHE VS ITO 2828/MUM/2008 22.12. 2009 3 SMT VERONICA J CORREIA VS ITO 5986/5987/5988/MUM/ 2009 30.06.2010 4 SMT ADRIN J AUGUSTINE VS ITO 1922 TO 1924/MUM/201 0 01.01.2011 5 SHRI KESHVAN PILLAY VS ITO 1595/MUM/2010 12.01.20 11 6.1 REFERRING TO THE ABOVE DECISIONS, HE SUBMITTED THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE CO-ORDINATE BENCHES OF T HE TRIBUNAL HAVE CANCELLED THE PENALTY U/S 271(1)(C) LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) ON ACCOUNT OF SIMILAR DISALLOW ANCE OF LEASE RENT, ARREARS OF LEASE RENT AND MAINTENANCE CHARGES. SINCE THIS BEING A COVERED MATTER BY THE DECISIONS OF THE COORDINATE BENCHES OF THE T RIBUNAL IN THE CASE OF BPCL EMPLOYEES; THEREFORE, THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND THE PENALTY LEVIED BE CANCELLED. 6.2 THE LD DR, ON THE OTHER HAND, FAIRLY CONCEDED THA T UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE COORDINATE BENCHES OF TH E TRIBUNAL HAVE CANCELLED THE PENALTY U/S 271(1)(C) LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A). 7 AFTER HEARING BOTH THE SIDES, WE FIND THE COORDINAT E BENCHES OF THE TRIBUNAL IN THE CASES OF THE BPCL EMPLOYEES, CITED S UPRA, UNDER IDENTICAL FACTS AND CIRCUMSTANCES HAVE CANCELLED THE PENALTY LEVIED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A). THE LD DR COULD N OT BRING ANY CONTRARY MATERIAL OR DISTINGUISHABLE FEATURES AGAINST THE ORDER OF THE TRIBUNAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISIONS OF TH E COORDINATE BENCHES OF 3 ITA NO. 4499/MUM/2010 (ASST YEAR 2003-04 ) THE TRIBUNAL, UNDER IDENTICAL FACTS AND CIRCUMSTANC ES, WE ARE OF THE CONSIDERED OPINION THAT IT IS NOT A FIT CASE FOR LEV Y OF PENALTY U/S 271(1)(C) OF THE I T ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO CANCEL THE PENALTY. THE GROUND S TAKEN BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. ITA NOS. 1919 TO 1921/MUM/2010 (ASSESSMENT YEARS 20 02-03 TO 04-05) 8 THERE IS A DELAY OF 240 DAYS EACH IN FILING OF T HE ABOVE APPEALS BY THE ASSESSEE. THE ASSESSEE HAS FILED AFFIDAVITS EXPLA INING THE REASONS FOR DELAY IN FILING OF THESE APPEALS. AFTER HEARING BOTH THE PAR TIES, THE DELAY IN FILING OF THESE APPEALS IS CONDONED AND THESE APPEALS ARE ADM ITTED FOR HEARING. 9 IN ALL THESE THREE APPEALS, THE ASSESSEE HAS CHALL ENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY OF ` 8,308/-, ` 43,810/- AND ` 12,696/- LEVIED BY THE ASSESSING OFFICER U/S 271(1 )(C) OF THE I T ACT FOR THE ASSESSMENT YEARS 2002-03, 03-04 AND 04-05 RESPECTIV ELY. 10 THE GROUNDS TAKEN BY THE ASSESSEE IN ALL THESE T HREE APPEALS ARE IDENTICAL TO THE GROUND TAKEN IN ITA NO.1918/MUM/201 0. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS TAKEN BY THE ASSES SEE HAVE BEEN ALLOWED. FOLLOWING THE SAME RATIO, THE PENALTY SU STAINED BY THE CIT(A) IN THESE APPEALS ARE ALSO CANCELLED. THE GROUNDS TAKE N IN THESE APPEALS ARE ALLOWED. 11 IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 5 IN VIEW OF THESE FACTS IT BECOME CLEAR THAT THE P ENALTY INITIATED U/S 271(1)( C) IN IDENTICAL CIRCUMSTANCES ON OTHER EMPLOYEES OF B PCL HAS BEEN FINALLY DELETED BY THE TRIBUNAL. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT TO OUR NOTICE BY THE LD DR, RESPECTFULLY FOLLOWING THE PRECEDENTS, W E OVERTURN THE IMPUGNED ORDER AND ORDER FOR THE DELETION OF THE PENALTY IN THE YE AR UNDER CONSIDERATION. 6 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED ON THE 27 TH DAY OF JULY 2011. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH , JULY 2011 RAJ* 4 ITA NO. 4499/MUM/2010 (ASST YEAR 2003-04 ) COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI