ASST CIT CIR 20(3), MUMBAI V. SAJIT IQBAL QUERESHI, MUMBAI

ITA 4649/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2909 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 4649/MUM/2013 (ASSESSMENT YEAR:2008-09) THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE- 20(3), MUMBAI APPELLANT VS. SHRI SAJIT IQBAL QUERESHI 22 ND FLOOR, 2201, SILVER ARCH TOWER, SHASTRI NAGAR, LOKHANDWALA COMPLEX, ANDHERI (W), MUMBAI 400 053 RESPOND ENT PAN: AACPQ0189L /BY APPELLANT : SHRI VACHASPATI TRIPATHI, D.R. /BY RESPONDENT :SMT. NEELAM JADHAV, A.R. /DATE OF HEARING : 06.06.2016 /DATE OF PRONOUNCEMENT : 24.06.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-31, MUMBAI, DA TED 04.03.2013 FOR A.Y. 2008-09 ON FOLLOWING GROUNDS: ITA NO.4649/MUM/13 A.Y. 08-09 [ACIT VS. SHRI SAJIT IQBAL QUERESHI] PAGE 2 I THE LD. CIT(A)ERRED ON THE FACTS AND CIRCUMSTANC ES OF THE CASE AND IN LAW IN DIRECTING THE AO TO DELETE PENALTY U/S 271(1)(C) AMOUNTING TO RS.4,93,378/-. II ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED ON NOT CONSIDERING THAT TH E ASSESSEE HAS FAILED TO PROVE WITH EVIDENCE THAT HE IS ONLY A COMMISSION AGENT, THE ASSESSEE HAS NOT SATISFACTORILY RECONCILE THE COMMISSION INCOME VIS A VIS TDS CERTIFICATE THEREBY LEADING TO REJECTION OF BOO KS AND ESTIMATING INCOME. III THE LD. CIT(A) HAS ERRED IN IGNORING THE FACTS THAT THE ESTIMATION OF INCOME WAS ACCEPTED BY THE ASSESSEE. THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST ON HIM TO PROVE THAT THE INCOME DECLARED BY HIM WAS NO T INACCURATE. THEREFORE THE CASE IS COVERED BY THE EXPLANATION TO SECTION 271(1)(C) OF THE I.T. ACT, 1 961. 2. DURING COURSE OF ASSESSMENT PROCEEDINGS, ASSESSI NG OFFICER OBSERVED THAT ASSESSEE CLAIMED TO BE A COMM ISSION AGENT. HE AFTER ANALYZING THE BOOKS OF ACCOUNT OF ASSESSEE ESTIMATED THE GROSS RECEIPTS OF ASSESSEE AT RS.2.5 CRORE AND DETERMINED THE TOTAL INCOME OF ASSESSEE AT 10% OF G ROSS RECEIPTS I.E. RS.25 LACS. CONSEQUENTLY, PENALTY PR OCEEDINGS U/S. 271(1)(C) OF THE ACT WERE INITIATED. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE AND AFTER CONSIDERING THE SAME, CIT(A) GRANTED RELI EF TO THE ASSESSEE. 2.2 SAME HAS BEEN OPPOSED ON BEHALF OF REVENUE INTE R ALIA SUBMITTING THAT CIT(A) ERRED IN DELETING THE PENALT Y U/S. 271(1)(C) OF THE ACT AMOUNTING TO RS. 4,93,378/-. ASSESSEE ITA NO.4649/MUM/13 A.Y. 08-09 [ACIT VS. SHRI SAJIT IQBAL QUERESHI] PAGE 3 FAILED TO ESTABLISH THAT HE IS ONLY A COMMISSION AG ENT, HE HAS NOT SATISFACTORILY RECONCILE THE COMMISSION INCOME VIS--VIS TDS CERTIFICATE. IN FACTS AND CIRCUMSTANCES, ASSES SING OFFICER WAS JUSTIFIED IN LEVYING THE PENALTY U/S. 271(1)(C) OF THE ACT. ACCORDINGLY, LD. DEPARTMENTAL REPRESENTATIVE SUBMIT TED THAT THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ORDER OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, LD. AUTHOR IZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). 2.3 AFTER GOING THROUGH RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD, WE FIND THAT IN THIS CASE, ADDI TION HAS BEEN MADE TO THE INCOME RETURNED BY ASSESSEE PRIMARILY O N ACCOUNT OF ESTIMATION OF ASSESSEES INCOME BY ASSESSING OFF ICER. THIS ESTIMATION WAS BASED ON REJECTION OF ASSESSEES CLA IM OF BEING COMMISSION AGENT FOR THE MARKETING OF TELUGU FILMS DUBBED IN HINDI BY THE ASSESSING OFFICER WHO HELD THAT ASSESS EE WAS DOING BUSINESS AS HOLDER OF THE POWER OF ATTORNEY. THUS, THERE IS CLEAR DIFFERENCE IN THE INTERPRETATION OF FACTS AND CIRCUMSTANCES TO THE ASSESSEES BUSINESS AND ASSESS ING OFFICER. ASSESSING OFFICER HAS DRAWN INFERENCES BA SED ON THE DETAILS SUBMITTED BY ASSESSEE DURING ASSESSMENT PRO CEEDINGS AND ASSESSEE HAS NOT BEEN SHOWN TO HAVE RECEIVED AN Y ADDITIONAL INCOME WHICH WAS NOT DECLARED BY HIM. H OWEVER, THERE IS NO QUANTIFICATION OF THE AMOUNT THAT WAS C ONCEALED OR WITH RESPECT TO WHICH INACCURATE PARTICULARS HAVE B EEN FURNISHED. THERE IS ONLY AN ESTIMATION OF INCOME O F ASSESSEE BASED ON ASSESSING OFFICERS PERCEPTION. ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY FACTS THROUGH EXTERNAL OR THIRD PARTY ITA NO.4649/MUM/13 A.Y. 08-09 [ACIT VS. SHRI SAJIT IQBAL QUERESHI] PAGE 4 ENQUIRIES THAT MAY SUPPORT HIS STAND THAT ASSESSEE HAD CONCEALED HIS INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. NO SPECIFIC TRANSACTIONS WITH REFERENCE TO WHICH EITHER INFORMATION OR INCOME WAS WITHHELD FROM THE REVENUE AUTHORITIES BY ASSESSEE HAVE BEEN POINTED OUT. REGA RDING THE DISALLOWANCE OF CLAIM OF VAT, MERELY MAKING AN INCO RRECT CLAIM WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICU LARS. EVEN THOUGH ASSESSEE HAS ACCEPTED QUANTUM ADDITION AND DISALLOWANCES MADE. IT IS SETTLED LEGAL POSITION T HAT QUANTUM AND PENALTY ARE DIFFERENT PROCEEDINGS. MOREOVER, H IGHER INCOME HAS BEEN DETERMINED BY ASSESSING OFFICER ON ACCOUNT OF ESTIMATION WHICH WAS NOT SOUND BASIS FOR PENALTY IN QUESTION AND SAME HAS BEEN DELETED BY CIT(A). THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SI DE. WE UPHOLD THE SAME. 3. AS A RESULT, APPEAL FILED BY REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 24 TH DAY OF JUNE, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 24/06/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. %&%'( ) / CONCERNED CIT ITA NO.4649/MUM/13 A.Y. 08-09 [ACIT VS. SHRI SAJIT IQBAL QUERESHI] PAGE 5 4. )- / CIT (A) 5.-./00'(, '( , %& / DR, ITAT, MUMBAI 6./4567 / GUARD FILE. BY ORDER / , / % , '( , %&