DR SHARAD HARIBHAU JADHAV, BHIWANDI V. ITO WD 1(4), MUMBAI

ITA 4726/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8448 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 05-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO. 4726/MUM/2016 ( / ASSESSMENT YEAR: 2009 - 10 ) DR. SHARAD HA RIBHAU JADHAV ASHWINI HOSPITAL, FLAT NO. , BLOCK NO. 7B/4, GOPAL NAGAR, BHIWANDI / VS. ITO - 1(4), MOHAN PLAZA, 1 ST FLOOR, WAYLE NAGAR, KALYAN (W), ./ ./ PAN/GIR NO. ABCPJ 1617 K ( / APPELLANT ) : ( / RES PONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAM TIWARI / DATE OF HEARING : 14.09.2017 / DATE OF PRONOUNCEMENT : 08.11 .2017 / O R D E R PER SHAMIM YAHYA , A. M. : THIS APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 , THANE (CIT(A) FOR SHORT) DATED 22.04.2016 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. T HE ISSUE RAISED IN THE APPEAL IS AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1) (C) AMOUNTING TO RS.5,0 2 , 091 / - . 2 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO 3. T HE ASSESSEE IN THIS CASE IS THE GENERAL PHYSICIAN . D URING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FROM THE DETAILS OF BOOKS OF ACCOUNTS, BANK ACCOUNTS ETC . SUBMITTED BY THE ASSESSEE, OBSERVED THAT ASSESSEE HAS NOT DISCLOSED ONE BANK ACCOUNT IN HIS FINANCIAL STATEMENT. THIS BANK ACCOUNT CO NTAINED A CASH DEPOSIT OF RS. 19,30,000 / - . IN EXPLANATION THE R E OF , THE ASSESSEE SUBMITTED THAT RS. 6,79,592 / - WAS HIS AGRICULTURAL INCOME AND BALANCE RS.1 2,50 , 408 / - WAS UNEXPLAINED PROFESSIONAL INCOME. THE ASSESSING OFFICER ACCEPTED THE CLAIM OF AGRICULTURAL INCOME, BUT TREATED THE SUM OF RS. 12, 50, 408 / - CLAIMED TO HAVE BEEN HIS UNDISCLOSED PROFESSIONAL INCOME AS INCOME FROM UNDISCLOSED SOU RCES . PENALTY WAS LEVIED WITH REFERENCE TO THIS UNDISCLOSED INCOME AND INTEREST OF RS. 3,498 / - WAS CREDITED IN THE SAID UNDISCLOSED BANK ACCOUNT. OVER AND ABOVE , PENALTY WAS ALSO LEVIED FOR ADDITION OF INTEREST AMOUNTING TO RS. 3 , 021 / - WHICH WAS REFLECTED I N THE 26AS STATEMENT . PENALTY UNDER SECTION 271 (1)(C) WAS LEVIED ON THESE FACTS FOR CONCEALMENT , WHICH WAS CONF IRM ED BY LD. CIT(A). 4. UPON CAREFUL CONSIDERATION AND HEARING THE LEARNED DEPARTMENTAL R EPRESENTATIVE, WE FIND THAT THIS IS NOT A CASE WHERE T HE ASSESSING OFFICER HAS RECEIVED SOME INFORMATION FROM OUTSIDE T HAT ASSESSEE IS HAVING AN UNDISCLOSED BANK ACCOUNT. THIS ASPECT WAS DISCOVERED BY THE ASSESSING OFFICER FROM THE DETAILS OF BANK ACCOUNTS SUBMITTED BY THE ASSESSEE HIMSELF DURING THE COURSE O F ASSESSMENT. IF THE ASSESSEE HAD INTENDED TO CONCEAL THIS BANK ACCOUNT , HE WOULD NEVER SUBMIT THE DETAIL HIMSELF. MOREOVER , THE ASSESSEE'S EXPLANATION OF AGRICULTURAL INCOME OUT OF THIS UNDISCLOSED 3 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO DEPOSIT HAS BEEN ACCEPTED BY THE R EVENUE AND NO PENALTY F OR THIS HAS BEEN LEVIED. ON THE OTHER HAND , THE OTHER CLAIM OF THE ASSESSEE OF THE BALANCE BEING UNDISCLOSED PROFESSIONAL INCOME HAS NOT BEEN ACCEPTED AND PENALTY HAS BEEN LEVIED ON THIS AMOUNT. IN OUR CAREFUL CONSIDERATION , ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ASSESSEE CANNOT BE HELD TO HAVE COMMITTED ANY CONTUMACIOUS CONDUCT. ASSESSEE HAS HIMSELF SUBMITTED THE DETAIL OF THE SAID BANK ACCOUNT WITHOUT ANY DISCOVERY BY THE ASSESSING OFFICER. FURTHERMORE , THERE IS NO REASON FOR GIVING ANY DIFFERENT TREATMENT TO THE ASSESSEES EXPLANATION OF UNDISCLOSED AGRICULTURAL INCOME AND UNDISCLOSED PROFESSIONAL INCOME. 5. IN THESE CIRCUMSTANCES , ON THE FACTS AND CIRCUMSTANCES OF THE CASE , IN OUR CONSIDERED OPINION , PENALTY LEVIED UNDER SECTION 271(1 )(C) IS NO T LEVIABLE IN THIS CASE, AS THE ASSESSEES CONDUCT CANNOT BE SAID TO BE CONTUMACIOUS. FOR THIS PROPOSITION , WE PLACE RELIANCE UPON THE HONBLE APEX COURT DECISION IN THE CASE OF HINDUSTAN STEELS LTD. V. STATE OF ORISSA [ 1972 ] 83 ITR 26 (SC) . ACCORDINGLY , IN THE BACKGROUND OF AFORESAID DISCUSSION , WE SET ASIDE THE ORDERS OF THE UTHORITIES BELOW AND DELETE THE LEVY OF PENALTY. 6. IN THE RESULT , THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.2017 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED :07.11.2017 4 ITA NO. 4726/MUM/2016 (A.Y. 2009 - 10) DR. SHARAD HARIBHAU JADHAV VS. ITO . . ./ ROSHANI , SR. P S / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITA T, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI