DILIP SHASHIKANT ZAVERI, Mumbai V. ITO 18(1)(4), Mumbai

ITA 4709/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3629 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 12-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Accommodation entries; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAMLAL NEGI, JM ITA NOS.4708/4709/MUM/2019 (ASSESSMENT YEARS: 2012-13 & 2013-14) DILIP SHASHIKANT ZAVERI ROOM NO. 606, ARUN CHAMBERA, TARDEO MAIN ROAD, TARDEO, MUMBAI-400 034 VS. INCOME TAX OFFICER-18(1)(4) PAN/GIR NO. AAAPZ 0498 D ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI BHARAT ANDHLE DATE OF HEARING : 08.03.2021 DATE OF PRONOUNCEMENT : 09.03.2021 O R D E R PER SHAMIM YAHYA, A. M.: THESE ARE APPEALS BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-29, MUMBAI (LD.CIT(A) FOR SHORT) DATED 06.06.2019, WHEREIN FOLLOWING PENALTY LEVIED U/S. 271(L)(C) HAS BEEN CO NFIRMED AS UNDER : ASSESSMENT YEAR AMOUNT OF PENALTY 2012-13 RS.62,418/- 2013-14 RS.1,98,351/- 2. BRIEF FACTS OF THE CASE LEADING TO THE LEVY OF P ENALTY ARE THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A.Y.S 2012-13 ON 17.10.201 2 DECLARING TOTAL INCOME OF RS.19,60,750/-. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE OFFICE OF PR. DIRECTOR OF INCOME-TAX (INV)-1, MUMBAI THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.2,00,000/- U/S.35AC AS DONATION TO NAVJEEVAN CHA RITABLE TRUST. ACCORDINGLY, NOTICE U/S.148 WAS ISSUED ON 17.02.2016 AND THE CASE WAS R E-OPENED U/S.147 OF THE ACT. IN VIEW OF THE FACTS AND THE CONCLUSIVE FINDING BY THE INCO ME TAX DEPARTMENT IN RESPECT OF THE TRUST THAT IT HAS NOT DONE ANY GENUINE CHARITABLE A CTIVITIES AND ONLY INDULGED IN GIVING BACK THE DONATION RECEIPTS IN CASH TO DONORS AFTER DEDUCTION OF COMMISSION, THE DEDUCTION 2 ITA NOS.4708/4709/MUM/2019 (ASSESSMENT YEARS: 2012-13 & 2013-14) OF RS.2,00,000/- CLAIMED U/S. 35AC OF THE ACT WAS D ISALLOWED AND ADDED TO THE INCOME DECLARED BY THE ASSESSEE AND PENALTY PROCEEDING U/S .271(1)(C) WAS INITIATED. IN RESPONSE TO NOTICE U/S. 271(1)(C) OF THE ACT, THE ASSESSEE F URNISHED REPLY DATED 31.01.2017 AND 26.04.2017 STATING THAT PAYMENT WAS MADE BY CHEQUES AND THE NAVJEEVAN CHARITABLE TRUST HAS GIVEN RECEIPT TO THE ASSESSEE FOR THE DON ATION GIVEN TO THEM. HOWEVER, THE A.O. WAS NOT SATISFIED WITH THE REPLY SUBMITTED BY THE A SSESSEE AS IT IS CLEAR THAT THE ASSESSEE BEING A BENEFICIARY HAS ALSO RECEIVED BACK THE CASH FROM THE TRUST IN LIEU OF THE DONATION OF RS.2,00,000/- GIVEN TO NAVJIVAN CHARITABLE TRUST . IT HAS FURTHER CLAIMED A DEDUCTION OF RS.2,00,000/- U/S. 35 AC OF THE ACT. CONSIDERING TH E FACTS OF THE CASE FOR FURNISHING INACCURATE PARTICULARS OF INCOME THE A.O. INITIATED PENALTY AND AFTER OBTAINING REPLY LEVIED PENALTY OF RS.62,418/- BEING 100% OF THE TAX SOUGHT TO BE EVADED. 3. IN THE PENALTY ORDER, THE AO NOTED THAT THE ASSE SSEE HAS DISCUSSED VARIOUS FACTS OF THE CASE AND SUBMITTED VARIOUS ARGUMENTS IN SUPPORT OF NON-LEVYING OF PENALTY ON THIS ISSUE. IN HIS REPLY, THE ASSESSEE ARGUED THAT THE A SSESSEE MADE THE PAYMENT THROUGH CHEQUES AND THE NAVJEEN CHARITABLE TRUST HAS GIVEN STAMP RECEIPT TO THE ASSESSEE FOR THE DONATION GIVEN TO THEM. THEREFORE, THE ASSESSEE HAS NOT FURNISHED INACCURATE PARTICULARS OF INCOME WITH A VIEW TO CONCEAL HIS INCOME FOR THE A.Y. 2012-13. THE ASSESSEE ALSO RELIED UPON VARIOUS CASE LAWS IN SUPPORT OF HIS ARG UMENT WRT NON LEVYING OF PENALTY. 4. HOWEVER, HE REJECTED BY OBSERVING THAT DOCUMENTS WERE FOUND IN SEARCH WITHOUT SPECIFYING THEM, WHICH CORROBORATED THE DONATIONS W ERE BOGUS. 5. UPON THE ASSESSEES APPEAL, THE LD. CIT(A) CONFI RMED THE PENALTY. 6. AGAINST THIS ORDER, THE ASSESSEE IS IN APPEAL BE FORE US. 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E (DR) AND PERUSED THE RECORDS. AS CLEAR FROM THE FACTS OF THE CASE NARRATED ABOVE, THE ASSESSEE HAS SUBMITTED ALL THE DOCUMENTARY EVIDENCES IN SUPPORT OF THE CLAIM OF TH E DONATION. THE CLAIM HAS BEEN REJECTED ON THE GROUND THAT A SEARCH IN THE RECIPIE NTS PREMISES HAS REVEALED THAT THE SAID ENTITY WAS PROVIDING ACCOMMODATION ENTRIES. WE FIND THAT ADDITION IN THIS REGARD DOESN'T IPSO FACTO MEAN THAT ASSESSEE SHOULD BE VISITED WITH THE RIGO RS OF PENALTY U/S.271(1)(C). 3 ITA NOS.4708/4709/MUM/2019 (ASSESSMENT YEARS: 2012-13 & 2013-14) THE SAID PENALTY IS LEVIED WHEN THE ASSESSEE IS GUI LTY OF FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALMENT. IN THE PRESENT CASE, WE F IND THAT THERE IS NO DOCUMENT EVIDENCE TO SUPPORT THIS VIEW. AS A MATTER OF FACT, ON MANY OCCASIONS, ON SIMILAR CIRCUMSTANCES, IN QUANTUM PROCEEDINGS, THE DISALLOW ANCE ITSELF HAS BEEN DELETED. IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE CANNOT BE SAID TO HAVE BEEN GUILTY OF CONCEALMENT OR FURNISHI NG OF INACCURATE PARTICULARS OF INCOME. IN THIS REGARD, WE DRAW SUPPORT FROM THE DECISION O F A LARGER BENCH OF THE HONBLE SUPREME COURT COMPRISING OF THREE OF THEIR LORDSHIP S IN THE CASE OF HINDUSTAN STEEL LTD. VS. STATE OF ORISSA [1972] 83 ITR 26 (SC), WHEREIN IT WAS HELD THAT THE AUTHORITY MAY NOT LEVY THE PENALTY, IF THE CONDUCT OF THE ASSESSEE IS NOT FOUND TO BE CONTUMACIOUS. 8. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PR ECEDENT, WE SET ASIDE THE ORDER'S OF AUTHORITIES BELOW AND DELETE THE LEVY OF PENALTY . 9. IN THE RESULT ASSESSEE'S APPEALS ARE ALLOWED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD ON 09.03.20 21. SD/- SD/- (RAM LAL NEGI) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 09.03.2021 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI