HARSHA H. JAVERI, MUMBAI V. DCIT 12(2), MUMBAI

ITA 463/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7605 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 20-03-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 19-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Business income; Depreciation; Initiation of penalty proceedings
• Section: 143(3); 27; 56

Judgement Text

HARSHA H JAVERI ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI REJENDRA, AM ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) HARSHA H JAVERI FLAT NO.3, 2 ND FLOOR NOWROJI MANSION FRON BUILDING, NATHALAL PARIKH ROAD MUMBAI 39 VS THE DY COMMR OF INCOME TAX 12(2), MUMBAI (APPELLANT ) (RESPONDENT) PAN NO. AAEPJ7739F ASSESSEE BY SHRI SANJAY R PARIKH REVENUE BY SHRI V V SHASTRI DT.OF HEARING 20 TH MARCH, 2012 DT OF PRONOUNCEMENT 28 TH , MARCH 2012 ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 20.11.2009 OF THE CIT(A) ARISING FROM THE PENALTY ORDER PASSED U /S 271(1)( C) OF THE ACT FOR THE AY 2004-05. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- 23, MUMBAI [CIT(A)] ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF T HE DEPUTY COMMISSIONER OF INCOME-TAX LEVYING A PENALTY OF RS. 6,13,290/- U /S. 271(1)(C) OF THE INCOME- TAX ACT. 2. THE LEARNED CIT(A) AND ASSESSING OFFICER FAILED TO APPRECIATE THAT THE APPELLANT HAD NOT FURNISHED INACCURATE PARTICULARS O F INCOME WHICH WOULD JUSTIFY THE LEVY OF PENALTY U/S. 271(1)(C). 3 THE ASSESSEE IS AN INDIVIDUAL AND FILED HER RETUR N OF INCOME ON 31.10.2004 DECLARING THE TOTAL INCOME OF RS. 7,39,19,210/-. TH E ASSESSEE HAS SHOWN LOSS OF HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 2 RS. 4,81,839/- FROM BUSINESS OF SHARE TRADING; LONG TERM CAPITAL GAINS AND SHORT TERM CAPITAL GAINS FROM INVESTMENT IN SHARES AND MINORS INCOME. THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 29.12.2006 WHEREBY THE ASSE SSING OFFICER MADE THE FOLLOWING ADDITIONS/DISALLOWANCES. A) BUSINESS LOSS DISALLOWED RS. 4,81,839/- B) ADDITION ON ACCOUNT OF LOW WITHDRAWAL, RS 2,00,000/- C) DISALLOWANCE OF INTEREST FROM INCOME FROM OTHER SOURCES RS. 15,62,445/- TOTAL RS. 22,,44,284/- 3.1 SUBSEQUENTLY, PENALTY PROCEEDINGS U/S 271(1)( C) WERE INITIATED BY ISSUING SHOW CAUSE NOTICE ON 29.12.2006 AND PENALTY OF RS . 6,13,290/- WAS LEVIED VIDE ORDER DATED 5.3.2009 AGAINST THE DISALLOWANCE OF BU SINESS LOSS OF RS. 4,81,839/- AND DISALLOWANCE ON INTEREST OF RS. 15,62,445/-. 3.2 THE ASSESSEE CHALLENGED THE LEVY OF PENALTY BEF ORE THE CIT(A) BUT COULD NOT SUCCEED. THE CIT(A) CONFIRMED THE LEVY OF PENALTY A ND DISMISSED THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER. 4 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT DURING THE YEAR THE ASSESSEE CLAIMED THE FIXED GENERAL AND ADMINISTRATIVE EXPENS ES OF RS. 4,93,135/- UNDER THE HEAD PROFIT AND GAINS OF BUSINESS. SINCE THE ASSESSEE HAS SHARE TRADING PROFIT OF RS. 3,371/- ONLY, THE NET R ESULT WAS BUSINESS LOSS AT RS. 4,81,839/-. THE LD AR HAS SUBMITTED THAT BECAUS E OF VOLATILE MARKET CONDITION AND TO AVOID LOSS DUE TO UNCERTAIN MARKET SITUATION, TH E ASSESSEE STOPPED THE TRADING ACTIVITY TEMPORARILY. THE EXPENSES INCURRED BY THE ASSESSEE ARE OF FIXED IN NATURE AND NOT DIRECTLY RELATED TO THE VOLUME OF BUSINESS OR I NCOME OR LOSS OF BUSINESS. THE ASSESSING OFFICER HAS DISALLOWED THE BUSINESS LOSS ON THE GROUND THAT THE EXPENDITURE CLAIMED BY THE ASSESSEE IS NOT PROPORTIONATE TO THE BUSINESS INCOME AND VOLUME OF THE BUSINESS. THUS, THE LD AR HAS SUBMITTED THAT T HE ASSESSEE HAS DISCLOSED ALL THE HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 3 RELEVANT DETAILS DURING THE ASSESSMENT PROCEEDINGS AND THE GENUINENESS OF THE EXPENDITURE HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER BUT WAS DISALLOWED ONLY ON THE GROUND THAT THE ASSESSEE HAS CARRIED OUT TRA DING ACTIVITY ONLY IN ONE SCRIP AND FOR THAT, THE EXPENDITURE OF RS. 4,93,135/- WAS ON HIGHER SIDE. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NEITHER CONCEALED A NY INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AND THE DISALLOWAN CE/ADDITIONS ARE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE OF OPINI ON. 4.1 AS REGARDS THE DISALLOWANCE OF INTEREST EXPENDI TURE, THE LD AR HAS SUBMITTED THAT THE ASSESSEE HAS BORROWED MONEY FOR THE PURPOS E OF MAKING INVESTMENT IN SHARES. HE HAS FURTHER CONTENDED THAT THIS MONEY WA S BORROWED FOR INVESTMENT IN THE SHARES PRIOR TO THE YEAR IN WHICH THE INCOME FR OM DIVIDEND WAS EXEMPTED U/S 10. THE ASSESSEE HAS CLAIMED INTEREST EXPENDITURE U/S 5 7 BECAUSE THERE WAS NO AMENDMENT IN SEC. 56 OR 57 WHICH DEALS WITH DEDUCTI ON AVAILABLE ON INCOME CHARGEABLE UNDER THE HEAD INCOME FROM OTHER SOURCE S. HE HAS FURTHER SUBMITTED THAT THE CLAIM OF THE ASSESSEE IS BONAFIDE AND SINC E THE INCOME OF THE ASSESSEES MINOR CHILDREN WHICH HAS BEEN ASSESSED IN THE HAND OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES, THEN THE SAID EXPENDITU RE WAS CLAIMED BY THE ASSESSEE AS PER SEC. 57 OF THE I T ACT. HE HAS FURTHER SUBM ITTED THAT THERE IS NO DISPUTE ABOUT THE MONEY BORROWED AND INTEREST EXPENDITURE BUT THE CLAIM OF THE ASSESSEE WAS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND T HAT THIS EXPENDITURE HAS NOT BEEN INCURRED IN RELATION TO THE INCOME WHICH IS ASSESSA BLE AS INCOME FROM OTHER SOURCES. THE LD AR, THUS SUBMITTED THAT WHEN THE ASSESSEE HA S EXPLAINED ALL THE DETAILS AS WELL AS THE CLAIM OF THE ASSESSEE AS GENUINE, THEN MEREL Y BECAUSE THE ADDITION HAS BEEN SUSTAINED, IT DOES NOT AMOUNT TO CONCEALMENT O F INCOME TO LEVY OF PENALTY U/S 271(1)( C) OF THE ACT. IN SUPPORT OF HIS CONTEN TION, HE HAS RELIED UPON THE DECISION HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 4 OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT LTD REPORTED IN 322 ITR 158(SC). 4.2 APART FROM THIS, THE LD AR HAS ALSO RAISED OBJE CTION THAT THE ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS ONLY IN RESPECT O F THE DISALLOWANCE OF BUSINESS LOSS AND SINCE NO SUCH PENALTY HAS BEEN INITIATED U/S 27 1(1)( C) FOR OTHER DISALLOWANCES/ADDITIONS; THEREFORE, NO PENALTY CAN BE LEVIED IN THE ABSENCE OF SATISFACTION OF THE ASSESSING OFFICER RECORDED IN T HE ASSESSMENT ORDER. HE HAS REFERRED THE RELEVANT PART OF THE ASSESSMENT ORDER AND SUBMITTED THAT THE ASSESSING OFFICER HAS SPECIFICALLY MENTIONED THAT PENALTY PRO CEEDINGS U/S 271(1) (C) INITIATED ONLY AGAINST THE DISALLOWANCE OF BUSINESS LOSS; BUT NO SUCH IN SATISFACTION HAS BEEN RECORDED AGAINST OTHER DISALLOWANCE. 4.3 THE LD DR ON THE OTHER HAND HAS SUBMITTED THAT VARIOUS EXPENSES CLAIMED BY THE ASSESSEE ARE FOUND BY THE ASSESSING OFFICER AS EXCESSIVE AND NOT RELATED TO THE BUSINESS INCOME. THEREFORE, THE ASSESSING OFFICER H AS MADE OUT A CASE OF INCORRECT CLAIM OF EXPENDITURE WHICH WAS NOT FOUND COMMENSURA TE WITH THE TRADING ACTIVITY OR INCOME OF THE ASSESSEE. THE LD DR HAS FURTHER SUBM ITTED THAT THE EXPLANATION OF THE ASSESSEE WAS ALSO NOT FOUND CORRECT AND BONAFIDE; T HEREFORE, THE PENALTY LEVIED ON THIS ACCOUNT IS JUSTIFIED. 4.4 AS REGARDS THE DISALLOWANCE OF INTEREST EXPENDI TURE, THE LD DR HAS SUBMITTED THAT THE ASSESSEE CLAIMED INTEREST EXPENDITURE AGAI NST THE INTEREST INCOME OF THE MINOR. BUT THE ASSESSING OFFICER BROUGHT OUT THE FA CT THAT THE INTEREST EXPENDITURE IS NOT RELATED TO THE INTEREST INCOME OF THE MINOR. T HEREFORE, THE CLAIM OF THE ASSESSEE WAS FOUND NOT GENUINE AND WRONG. HE HAS FURTHER SUB MITTED THAT EVEN THE BORROWED FUNDS WERE INVESTED IN THE SHARES AND THE INTEREST ON THE SAME CANNOT BE ALLOWED AS THE SAME IS BARRED UNDER THE PROVISIONS OF SEC. 14A. THEREFORE, THE CLAIM HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 5 OF INTEREST EXPENDITURE IS ABSOLUTELY WRONG AND THE EXPLANATION FURNISHED BY THE ASSESSEE IS NOT BONAFIDE . HE HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. ZOOM COMMUNICATION P. LTD. REPORTED IN 327 ITR 510 AND SUBMITTED THAT WHEN THE CLAIM WHICH IS NOT ONLY INCORRECT IN LAW, BUT IS ALSO WITHOUT ANY BASIS AND EXPLANATI ON FURNISHED BY THE ASSESSEE IS NOT FOUND TO BE BONAFIDE, THEN THE PENALTY PROVISIONS A RE ATTRACTED. 5 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL A S THE RELEVANT MATERIAL ON RECORD. OUT OF THE 3 ADDITIONS MADE BY THE ASSESSI NG OFFICER, PENALTY HAS BEEN LEVIED ONLY IN RESPECT OF DISALLOWANCE OF BUSINESS LOSS AND INTEREST EXPENDITURE. THERE IS NO DISPUTE REGARDING THE FACT THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS TRADING ACTIVITY ONLY IN ONE SCRIP, WH ICH HAS RESULTED TO TRADING PROFIT OF RS. 3,371/- AGAINST WHICH THE ASSESSEE CLAIMED THE EXPENDITURE IN THE NATURE OF COMPUTER MAINTENANCE, SERVICE CHARGES, TELEPHONE CH ARGES, PROFESSIONAL CHARGES, DEPRECIATION, CAR EXPENSE ETC., AMOUNTING TO RS . 4,93,174/- RESULTING NET LOSS OF RS. 4,81,839/- AS BUSINESS LOSS. THE ASSESSING OF FICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT LOOKING AT THE VOLUME O F THE BUSINESS AS SHOWN BY THE ASSESSEE, THE EXPENDITURE IS DEFINITELY EXCESSIVE A ND THEREFORE, CANNOT BE ALLOWED. 5.1 IT IS NOT THE CASE OF THE ASSESSING OFFICER THA T THE EXPENDITURE CLAIMED BY THE ASSESSEE IS BOGUS OR ABSOLUTELY WRONG. THE FACT OF EXPENDITURE HAS NOT BEEN DISPUTED BUT THE ASSESSING OFFICER DISALLOWED THE E XPENDITURE BECAUSE OF EXCESSIVE IN COMPARING TO THE TRADING ACTIVITY. 5.2 IT IS CLEAR FROM THE FACT OF THE CASE THAT THE ASSESSEE HAD MORE TRANSACTIONS OF PURCHASE AND SALE OF SHARES IN INVESTMENT PORTFOLIO THAN IN TRADING PORTFOLIO. HOWEVER, THE ASSESSING OFFICER HAS NOT DISALLOWED T HE EXPENDITURE BY APPLYING THE PROVISIONS OF SEC. 14A, WHICH IN OUR VIEW WOULD BE AN APPROPRIATE COURSE OF ACTION HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 6 WHEN THE ASSESSEE IS HAVING TRADING ACTIVITY AS WEL L AS SALE AND PURCHASE IN INVESTMENT PORTFOLIO AND FOR LONG TERM CAPITAL GAIN S OF RS. 6.23 CRORES AND SHORT TERM CAPITAL OF RS. 1.30 CRORES. THE DETAILS OF EXPENDI TURE WAS ALSO EXPLAINED AND BROUGHT ON RECORD BY THE ASSESSEE DURING THE ASSESSMENT PRO CEEDINGS. THEREFORE, IT IS NOT THE CASE OF ANY MISREPRESENTATION FOR CONCEALMENT OF PA RTICULARS OF INCOME; BUT THE CLAIM OF THE ASSESSEE WAS NOT ALLOWED BY THE ASSESS ING OFFICER BEING EXCESSIVE IN COMPARING TO THE BUSINESS ACTIVITY. WHEN THE CLAIM OF THE ASSESSEE IS NOT FOUND BOGUS OR ABSOLUTELY WRONG OR ILLEGAL AND THE ASSESS EE HAS ALSO DISCLOSED ALL THE RELEVANT PRIMARY FACTS, THEN THE DISALLOWANCE OF TH E SAME UNDER THE PROVISIONS OF THE ACT WOULD NOT IPSO FACTO LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CONCE ALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE P ARTICULARS OF INCOME LEADING TO LEVY OF PENALTY U/S 271(1)( C). 6 AS REGARDS THE DISALLOWANCE OF INTEREST EXPENDITU RE, THE ASSESSEE CLAIMED THE SAME AGAINST THE INCOME ASSESSABLE UNDER THE HEAD INCOME FROM SOURCE SOURCES. THE ASSESSING OFFICER DISALLOWED THE EXPENDITURE ON THE GROUND THAT THE ASSESSEE CLAIMED THE SET OFF AGAINST THE INTEREST INCOME OF THE MINORS. SINCE THE ASSESSEE COULD NOT EXPLAIN THE LOANS AND UTILIZATION OF THE FUNDS, THE ASSESSING OFFICER DISALLOWED THE SAME. IN THE PENALTY PROCEEDINGS, TH E ASSESSEE EXPLAINED THAT THE LOANS WERE TAKEN FOR INVESTMENT IN THE SHARES AND S INCE THESE LOANS WERE TAKEN PRIOR TO THE YEAR IN WHICH THE INCOME FROM DIVIDEND WAS E XEMPTED U/S 10. THIS FACT OF UTILISATION OF BORROWED FUNDS FOR INVESTMENT IN SHA RES HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER. 6.1 THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTIN CT FROM THE ASSESSMENT PROCEEDINGS. THEREFORE, THE EXPLANATION FURNISHED B Y THE ASSESSEE HAS TO BE EXAMINED BY THE ASSESSING OFFICER TO DETERMINE WHET HER THE EXPLANATION IS BONAFIDE HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 7 OR NOT. THOUGH, ADDITION MADE IN THE ASSESSMENT PRO CEEDINGS IS A RELEVANT MATERIAL FOR THE PROCEEDINGS U/S 271(1)( C); BUT IF THE ASSE SSEE HAS EXPLAINED THE FACT DURING THE PENALTY PROCEEDINGS, WHICH ARE NEITHER FOUND BOGUS NOR FALSE, THEN THE EXPLANATION OF THE ASSESSEE HAS TO BE CONSIDERED ON THE PARAMETERS OF BONAFIDE. THE ASSESSEE HAS DISCLOSED ALL THESE FACT BEFORE TH E ASSESSING OFFICER THAT THE INTEREST EXPENDITURE PERTAINS TO THE BORROWED FUNDS, WHICH W AS UTILISED FOR INVESTMENT IN THE SHARES. THEREFORE, WHEN THIS FACT HAS NOT DISPUTED BY THE ASSESSING OFFICER, THE CLAIM OF EXPENDITURE; THOUGH MAY NOT BE ALLOWABLE IN VIEW OF THE PROVISIONS OF SECTION 14A; BUT THE SAME CANNOT BE HELD TO BE BOGUS OR FAL SE. THE ACTUAL PAYMENT OF INTEREST IS NOT DISPUTED; HOWEVER, THE SAME IS NOT ALLOWABLE BECAUSE THE DIVINED INCOME IS NOT TAXABLE. THEREFORE, WHEN THE ASSESSEE CAME OUT WITH AN EXPLANATION, WHICH IS PROPER AND BONAFIDE, AND ALSO SUPPORTED BY THE FACTS THAT IN THE EARLIER YEARS, THE DIVIDEND INCOME WAS ASSESSABLE AND THE A SSESSEE CLAIMED THE INTEREST EXPENDITURE U/S 57; THEREFORE, THE CLAIM OF THE ASS ESSEE CANNOT BE SAID AS BOGUS. 7 AS REGARDS THE CONTENTION OF THE LD AR THAT THE ASSESSING OFFICER HAS NOT RECORDED THE SATISFACTION FOR INITIATION OF PENALTY PROCEEDINGS IN RESPECT OF DISALLOWANCE OF INTEREST EXPENDITURE, IT IS TO BE N OTED THAT THE ASSESSING OFFICER HAS SPECIFICALLY RECORDED THE INITIATION OF PENALTY PRO CEEDINGS U/S 271(1) C) AT THE END OF THE ASSESSMENT ORDER, WHICH ITSELF SUFFICIENT TO SH OW THAT THE ASSESSING OFFICER HAS RECORDED ITS SATISFACTION FOR INITIATION OF PENALTY FOR ALL THE DISALLOWANCES/ADDITIONS. IT IS NOT REQUIRED ON THE PART OF THE ASSESSING OFFICE R TO RECORD HIS SATISFACTION FOR EACH AND EVERY DISALLOWANCE/ADDITION SEPARATELY ONCE TH E SATISFACTION IS RECORDED AT THE END OF THE ASSESSMENT ORDER. THE DECISION RELIED UPON BY THE LD DR IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE WHEREAS THE DECISION OF THE HONBLE HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI HARSHA H JAVERI ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 ITA NO. 463/MUM/2010 (ASST YEAR 2004-05) 8 SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT LTD (SUPRA) IS APPLICABLE AND ACCORDINGLY, THE PENALTY IS NOT JUSTIFIED AGAIN ST THE DISALLOWANCES IN QUESTION. 8 IN VIEW OF THE ABOVE DISCUSSION AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE ASSESSEE HAS DISCLOSED THE PRIMARY F ACTS AND THE GENUINENESS OF THE EXPENDITURE IS NOT IN DISPUTE, THEN MERE DISALLOWAN CE OF CLAIM OF EXPENDITURE WOULD NOT LEAD TO ATTRACT PENALTY PROVISIONS U/S 271(1 ) C) OF THE ACT. ACCORDINGLY, WE DELETE THE PENALTY LEVIED IN THIS CASE. 9 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 28 TH , DAY OF MAR 2012 SD/ SD/- ( RAJENDRA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 28 TH , MAR 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI