ANTHONY BAPTIST TAURO, MUMBAI V. ITO 18(2)(3), MUMBAI

ITA 4839/MUM/2012

• Counselvise Citation: 483919914 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SACHIDANAND DUBE
• Assessee Lawyers: B N RAO
• Keywords: Revised return; Bonafide mistake
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER I.T.A. NO.4839/MUM/2012 (ASSESSMENT YEAR : 2008-09) SHRI ANTHONY BAPTIST TAURO BLOCK NO.6, R.NO.57 NEW LABOUR CAMP, SASHMIRA ROAD,WORLI MUMBAI. VS. INCOME TAX OFFICER- 18(2)(3)) MUMBAI. PAN/GIR NO. AABPT 3348 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.N. RAO DEPARTMENT BY : SHRI SACHIDANAND DUBE DATE OF HEARING : 08.09.2014 DATE OF PRONOUNCEMENT : 12.09.2014 O R D E R PER JOGINDER SINGH, JM : THIS APPEAL IS BY THE ASSESSEE CHALLENGING CONFIRMATION OF PENALTY AMOUNTING TO RS.11,04,905/- , IMPOSED U/S. 271(1)(C) OF THE ACT, VIDE ORDER DT. 17/05/2012 BY THE LD. FIRST APPELLATE AUTHORITY. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHR I B.N. RAO, LD. COUNSEL FOR THE ASSESSEE AND SHRI SACHIDAN AND ITA NO.4839/M/12 AY: 07-08 2 DUBE, LD. DR. THE CRUX OF ARGUMENT ADVANCED ON BEHA LF OF THE ASSESSEE IS THAT THE APPELLANT IS AN UNEDUCATED PERSON, RELIED UPON THE ADVISE OF BANK MANAGER OF RATNAKAR BANK THAT AMOUNT RECEIVED FROM DEVELOPER IS EXEMPT FROM TAXATION AND THUS THERE WAS NO INTENTION TO AVOID T AX. RELIANCE WAS PLACED UPON THE DECISION IN ACIT VS. A SHOK RAJNATH (2012) 19 ITR (TRIB.) 70 (DEL.); ITA NO.2970/DEL./2012 DATED 31/08/2012. IT WAS ALSO PLE ADED THAT THE ASSESSEE REVISED HIS RETURN, THEREFORE, NE ITHER THERE IS CONCEALMENT NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. ON THE OTHER HAND MR. DUBE, LD. DR CONTENDED THAT THE ASSESSEE DELIBERATELY CONCEALED ITS PARTICULARS OF INCOME AND REVISED THE RETURN ONLY A FTER DETECTION BY THE DEPARTMENT. IMPOSING AND CONFIRMAT ION OF PENALTY WAS DEFENDED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED MATERIALS AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE WAS ENGAGED IN CARRYING THE JOB W ORK OF VEHICLE ELECTRICAL WORK AND WAS HAVING HIS OWN GARA GE. THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR DECLARED ITA NO.4839/M/12 AY: 07-08 3 TAXABLE INCOME OF RS.1,00,222/- ON 22/09/2008. ONE GARAGE PREMISES WAS ACQUIRED BY A BUILDER FOR DEVEL OPMENT AND PAID COMPENSATION TO THE OCCUPANTS AND THE PRES ENT ASSESSEE RECEIVED RS.49,10,000/- DURING THE FY : 20 07- 2008 FROM THE DEVELOPER. THIS AMOUNT WAS NOT DECLAR ED IN THE ORIGINAL RETURN FILED BY THE ASSESSEE. THE SAI D RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT ON 03/10/2009 RESULTING INTO REFUND OF RS.6,300/- . TH E CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, CONSEQUE NTLY, NOTICE U/S. 143(2), DATED 13/08/2009, WAS ISSUED AN D SERVED UPON THE ASSESSEE . SUBSEQUENTLY, NOTICE U/S . 142 (1) OF THE ACT ALONGWITH QUESTIONNAIRE WAS ALSO ISS UED AND SERVED UPON THE ASSESSEE TO WHICH THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEED INGS. THERE WAS AN AIR INFORMATION IN RESPECT OF INTEREST FROM RATNAKAR BANK TO THE TUNE OF RS.2,23,899/- AND INVE STMENT IN MUTUAL FUND TO THE TUNE OF RS.14,50,000/-. IT WA S OBSERVED FROM THE INCOME TAX RETURN THAT THE ASSESS EE HAS NEITHER SHOWN THE INTEREST INCOME NOR THE INVESTMEN T IN MUTUAL FUNDS. A DETAILED QUESTIONNAIRE WAS AGAIN IS SUED TO THE ASSESSEE REQUIRING THE ASSESSEE TO SUBMIT THE R ELEVASNT ITA NO.4839/M/12 AY: 07-08 4 DETAILS. ON 16/07/2010 THE AR OF THE ASSESSEE, ATTE NDED AND SUBMITTED THE P&L ACCOUNT.. IT WAS SUBMITTED BY THE ASSESSEE THAT THE BALANCE SHEET WILL BE SUBMITTED L ATER. THE CASE WAS ADJOURNED TO 5/8/2010. ON THAT DATE NOBODY ATTENDED, HOWEVER, VIDE LETTER DATED 9/11/2010 SUBMISSIONS WERE MADE BY THE ASSESSEE. ON GOING THR OUGH THE ORIGINAL BALANCE SHEET, FILED WITH THE RETURN, IT WAS FOUND THAT THE GARAGE WAS SHOWN ON THE ASSETS SIDE ON 31/3/2008 AND NO INVESTMENT IN MUTUAL FUND WAS SHOW N BY THE ASSESSEE AND EVEN THE BANK INTEREST OFFERED FOR TAXATION WAS ONLY RS.433/-. IN VIEW OF THIS FACT IT WAS OBSERVED BY THE AO THAT THE ASSESSEE DELIBERATELY D ID NOT DISCLOSE THE MATERIAL FACTS/ALL TRANSACTIONS. IN PA RA 3.1 OF THE ASSESSMENT ORDER THERE IS A MENTION OF ONE LETT ER DATED 01/09/2010 WHEREIN THE ASSESSEE ACCEPTED THAT THE SALE TRANSACTION OF GARAGE AND THE BANK ACCOUNT MAINTAIN ED AT RATNAKAR BANK WAS NOT MENTIONED /PRODUCED AT THE TI ME OF FILING OF RETURN. IN VIEW OF THIS FACT IT WAS CONCL UDED BY THE AO THAT THE ASSESSEE DELIBERATELY AVOIDED TAX LIABI LITY AND FURNISHED INACCURATE PARTICULARS. THE AO COMPUTED L ONG TERM CAPITAL GAIN AT RS.46,35,332/- AND ALSO DID N OT ALLOW ITA NO.4839/M/12 AY: 07-08 5 THE CLAIM OF DEDUCTION U/S. 54F. LIKEWISE, THE INTE REST OF RS.2,36,937/-, WHICH WAS NOT DISCLOSED BY THE ASSES SEE WAS TREATED AS INCOME FROM OTHER SOURCES. THE ASSES SMENT WAS COMPLETED U/S. 143(3) ON 19/12/2012 AT THE TOTA L INCOME OF RS.49,65,788/- AGAINST THE RETURNED INCOM E OF RS.1,00,222/-. THE AO ISSUED NOTICE U/S. 274 R.W.S. 271(1)(C) OF THE ACT AND FINALLY IMPOSED PENALTY OF RS. 11,04,905/- U/S. 271(1)(C) OF THE ACT. ON APPEAL TH E PENALTY WAS SUSTAINED AND IS UNDER CHALLENGE BEFORE THIS TR IBUNAL . 3.1 UNDER THE AFOREMENTIONED FACTS AND THE ARGUMENT S ADVANCED FROM BOTH SIDES NOW QUESTION ARISES WHETH ER THE PENALTY WAS RIGHTLY IMPOSED/SUSTAINED ? THERE IS NO DISPUTE TO THE FACT THAT DURING FILING OF ORIGINAL RETURN THE ASSESSEE NEITHER DECLARED THE INTEREST INCOME RECEI VED FROM THE BANK NOR THE RECEIPT OF CONSIDERATION OF RS.49, 10,000/- RECEIVED VIDE AGREEMENT DATED 14/5/2007 TOWARDS SAL E OF GARAGE. THE ASSESSEE FURNISHED THE REVISED RETURN A FTER IT WAS DETECTED BY THE DEPARTMENT ON ISSUANCE OF NOTIC E. IT IS PERTINENT TO MENTION HERE THAT AGAINST THE ORIGINAL RETURN FILED ON 22/9/2008 A REFUND OF RS.6,300/- WAS ISSUE D TO ITA NO.4839/M/12 AY: 07-08 6 THE ASSESSEE . SINCE THE CASE OF THE ASSESSEE WAS S ELECTED FOR SCRUTINY AND DIFFERENT NOTICES ALONG WITH QUEST IONNAIRE WERE SERVED UPON THE ASSESSEE THEN THE ASSESSEE CAM E FORWARD AND REVISED ITS RETURN. IT IS NOT THE CASE THAT THE REVISE RETURN WAS FILED SUO MOTO . THE TAX WAS PAID BY THE ASSESSEE ON 10/1/2011 WHEREAS THE ORIGINAL RETURN W AS FILED ON 22/9/2008. IF THERE WOULD HAVE BEEN NO NOT ICE FROM THE DEPARTMENT THERE WAS ALL POSSIBILITY THAT THE INCOME WHICH WAS NOT DECLARED MAY HAVE REMAINED WIT HOUT TAXATION CAUSING LOSS TO THE STATE EXCHEQUER. IN VI EW OF THIS FACT IT CAN BE SAID THAT THE ASSESSEE CONCEALED ITS INCOME BY FURNISHING INACCURATE PARTICULARS RELATING TO HIS I NCOME. 3.2 THE EXPRESSION HAS CONCEALED THE PARTICULARS OF INCOME AND HAS FURNISHED INACCURATE PARTICULARS OF INCOME HAVE NOT BEEN DEFINED EITHER IN SEC.271(1)(C) OR EL SEWHERE IN THE ACT, BUT ITS EFFECT IS CERTAINLY KEEPING OFF A CERTAIN PORTION OF INCOME. THE WORD CONCEALED IS DERIVED FR OM THE LATIN WORD CONCOLARE WHICH IMPLIES TO HIDE . ANY ACCURACY MADE IN BOOKS OF ACCOUNT OR OTHERWISE WHICH RESULTS IN KEEPING OFF OR HIDING A PORTION OF ITS INCOME AMOUN TS TO ITA NO.4839/M/12 AY: 07-08 7 FURNISHING OF INACCURATE PARTICULARS OF ITS INCOME. THE EXPRESSION INCOME MEANS THE TOTAL INCOME FOR WHIC H THE ASSESSEE IS BOUND TO FILE THE RETURN U/S. 139(1) OR ANY OTHER SECTION AS PERMISSIBLE. ANY CONCEALMENT OR INACCURA CY IN THE PARTICULARS OF INCOME WHILE WORKING OUT THE TOT AL INCOME WOULD ATTRACT THE PENALTY PROVISION U/S. 271 (1)(C) UNLESS AND UNTIL THE BONAFIDES ARE PROVED. OF GREAT ER IMPORTANCE IS THE NECESSITY OF DEFINITE FINDING ABO UT CONCEALMENT BY THE REVENUE. IT IS NOT EVEN THE CAS E OF A BONAFIDE MISTAKE OR SUO MOTO FILING THE REVISED RET URN. 3.3 SO FAR AS THE RELIANCE UPON THE DECISION IN THE CASE OF ACIT VS. ASHOK RAJNATH (SUPRA) BY THE ASSESSEE IS CONCERNED IN THAT CASE , WE NOTE THAT THE ADDITIONA L INCOME WAS DISCLOSED SUO MOTO BY THE ASSESSEE AND FURTHER THE ASSESSEE FURNISHED ALL PARTICULARS OF INCOME THEREF ORE, THIS JUDICIAL PRONOUNCEMENT IS DISTINGUISHED ON FACTS, T HEREFORE, MAY NOT HELP THE ASSESSEE. MORE SPECIFICALLY WHEN T HE ASSESSEE IN THE AFOREMENTIONED CASE SUO MOTO DISCLO SE ADDITIONAL INCOME DURING ASSESSMENT PROCEEDINGS ITS ELF AND PAID TAX THEREON. THE RETURN WAS ALSO REVISED VOLUN TARILY, ITA NO.4839/M/12 AY: 07-08 8 THEREFORE, THE FACTS CANNOT FIT INTO THE FACTS BEFO RE US. IN THE ENTIRETY OF CIRCUMSTANCES LEADS TO THE CONCLUSION T HAT THE ASSESSEE CONSCIOUSLY CONCEALED THE PARTICULARS OF H IS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF. SO FAR AS THE ARGUMENT THAT ONE MANAGER OF THE BANK ADVISE D THE ASSESSEE THAT THE AMOUNT RECEIVED FROM THE DEVELOPE R IS EXEMPT FROM TAXATION IS MERELY AN AFTER THOUGHT AND MAY NOT HELP THE ASSESSEE. IT WAS THE DUTY OF THE ASSES SEE TO GET ADVISE FROM AN EXPERT PERSON. EVEN OTHERWISE IT IS NOT THE CASE, THAT THE ASSESSEE IS FILING THE RETURN FOR T HE FIRST TIME RATHER HE IS AN OLD ASSESSEE REGULARLY FILING HIS RETURN. THIS FACT WAS ALSO ADMITTED BY THE ASSESSEE THAT TRUE IN COME WAS NOT DECLARED BY THE ASSESSEE IN THE ORIGINAL RE TURN OF INCOME. THE EXPLANATION OFFERED BY THE ASSESSEE IS ALSO NOT CORRECT AND IS NOT SUBSTANTIATED WITH FACTS. A DUTY HAS BEEN CAST UPON THE ASSESSEE TO MAKE CORRECT DISCLOSURE O F INCOME. THE ACT OR CONDUCT OF AN ASSESSEE TO CONCEA L THE INCOME IS AN INFERENTIAL FACT TO BE DRAWN OR DEDUCE D FROM TOTALITY OF FACTS AND CIRCUMSTANCES, IF KEPT IN JUX TAPOSITION, IT LEADS TO THE CONCLUSION THAT THE ASSESSEE EITHER CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS. I N VIEW OF ITA NO.4839/M/12 AY: 07-08 9 THIS FACT WE FIND NO INFIRMITY IN THE CONCLUSION DR AWN BY THE LD. CIT(A), CONSEQUENTLY, AFFIRMED RESULTING INTO D ISMISSAL OF APPEAL FILED BY THE ASSESSEE . 4. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THIS 12 TH DAY OF SEPTEMBER, 2014 . SD/- ( RAJENDRA ) ACCOUNTANT MEMBER SD/- ( JOGINDER SINGH ) JUDICIAL MEMBER MUMBAI; DATED : 12/09/2014 JV. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (ASSTT. REGISTRAR) ITAT, MUMBAI