Appeal details
Counselvise Citation
[2016] 132 COUNSELVISE.COM (IT) 4049 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 8 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-04-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Assessment Year
2011-2012
Appeal Filed On
24-07-2014
Judgement Text
D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 4887 /MUM/2014 ( / ASSESSMENT YEAR : 2011-12) MRS. RICHA DUBEY, C-603, AKRUTI ORCHID PARK CHS, SAKINAKA, ANDHERI (EAST), MUMBAI 400 072. / V. INCOME TAX OFFICER- 26(2)(2), 6 TH FLOOR, DR. K.G. MITTAL AYURVEDIC HOSPITAL, CHARNI ROAD, MUMBAI- 400 004. ./ PAN : AIOPD6361R ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SMT. M.K. PATEL & SHRI K.S. CHOKSHI REVENUE BY : SHRI B.S. BIST (SR.DR) / DATE OF HEARING : 8-2-2016 / DATE OF PRONOUNCEMENT : / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 4887/MUM/2014, IS DIRECTED AGAINST THE ORDERS DATED 23-05-2014 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 28, MUMBAI (H EREINAFTER CALLED THE CIT(A) ), FOR THE ASSESSMENT YEAR 2011-12, THE APP ELLATE PROCEEDINGS BEFORE THE CIT(A) ARISING FROM THE PENALTY ORDER UNDER SEC TION 271(1)(C) OF THE INCOME TAX ACT, 1961(HEREINAFTER CALLED THE ACT) DATED 2 0-02-2014 PASSED BY THE ASSESSING OFFICER(HEREINAFTER CALLED THE AO).. ITA 4887/MUM/2014 2 2. THE GROUNDS RAISED BY THE ASSESSEE IN THE MEMO O F APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL , MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. (A) THE LEARNED CIT(A) HAS ERRED IN GRANTING PAR TIAL RELIEF FOR LEVY OF PENALTY U/ S 271(1)(C) OF THE INCOME TAX ACT, 1961 W ITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE SAME BE DELETED. (B) THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THAT THE ASSESSEE HAS CONCEALED /FILED INACCURATE PARTICULARS OF INCOME W HEREBY THE ASSESSEE IS LIABLE FOR LEVY OF PENALTY U/S 271 (1) (C) OF TH E INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. HENCE THE PENALTY BE DELETED. (C) THE LEARNED CIT(A) WAS FAILED TO CONSIDER THE EXP LANATION AND THE FACTS PUT FORTH BY THE ASSESSEE WITH REGARD TO THE ERRO R INCURRED IN THE FILING OF TAX RETURNS. THE ASSESSEE HAD ALSO EXP LAINED THAT THIS ERROR WAS IDENTIFIED BY THE ASSESSEE WHO HAD SOU MO TO INFORMED THE LEARNED AO AND SOUGHT ASSISTANCE TO RECTIFY THE DEFAULT. HENCE CONSIDERING THE CONTENTION OF THE ASSESSEE WHICH WAS N OT TO EVADE TAX, THE PENALTY CONFIRMED BY THE LEARNED CIT(A) BE DELET ED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143 (3) READ WITH SECTION 143(2) OF THE ACT, THE A.O. OBSERVED THAT THE ASSE SSEE RECEIVED SALARY FROM M/S. AC NIELSON RESEARCH SERVICES PVT. LTD OF RS. 2 6,376/- AND M/S. HINDUSTAN UNILEVER LIMITED OF RS.21,22,182/- TOTALI NG RS. 21,48,558/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2011-12. THE AO OBSERVED THAT THE ASSESSEE OFFERED GROSS TOTAL INCO ME TO THE EXTENT OF RS.2,34,882/- IN THE RETURN OF INCOME FILED WITH RE VENUE AND THE TOTAL SALARY HAS NOT BEEN DECLARED IN THE RETURN OF INCOME FILED WITH THE REVENUE, THE AMOUNT OF RS. 19,13,676/- (RS.21,48,558 RS.2,34,8 82) WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNDER-DECLARATION OF SALARY INCOME VIDE ASSESSMENT ORDERS DATED 30-08-2013 PASSED BY THE AO U/S 143(3) OF THE ACT AND PENALTY PROCEEDINGS U/S.271(L)(C) OF THE ACT WA S ALSO INITIATED AGAINST THE ASSESSEE FOR CONCEALMENT OF INCOME AND FURNISHING O F INACCURATE PARTICULARS ITA 4887/MUM/2014 3 OF INCOME. DURING THE COURSE OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, IT WAS SUBMITTED BY THE ASSESSEE THAT IT IS A CLEAR CUT CASE OF NEGLIGENCE ON THE PART OF PROFESSIONAL ONLINE TAX RETURN FILING P ORTAL TAXSPANNER , WHO WERE ENGAGED BY THE ASSESSEE FOR FILING HER RETURN OF IN COME WITH THE REVENUE AND WHO HAVE SUBMITTED THE WRONG DETAILS OF THE ASSESSE E WHILE FILING THE ASSESSEES RETURN OF INCOME WITH THE REVENUE FOR WH ICH THE ASSESSEE SHOULD NOT BE PENALIZED AND THE ASSESSEE HAS NOT DONE ANYT HING WRONG OR INCORRECT AS FAR AS FILING OF RETURN OF INCOME WITH THE REVE NUE IS CONCERNED. THE ASSESSEE SUBMITTED THAT SHE HAS PROVIDED HER FORM N O. 16 RECEIVED FROM HER EMPLOYER TO THE WEBSITE OF ONLINE TAX RETURN FILIN G PORTAL TAXSPANNER AND RECEIVED THE CONFIRMATION FROM THE SAID ONLINE TAX RETURN FILING PORTAL TAXSPANNER ON 25/06/2011 STATING THAT RETURN OF INCOME IS FILED WITH THE REVENUE AND THE ASSESSEE WILL GET ITR-V (ACKNOWLEDG EMENT OF FILING OF RETURN OF INCOME) COPY FROM THEM IN 24 HOURS. THE ASSESSEE RECEIVED THE ITR-V FROM ONLINE TAX RETURN FILING PORTAL TAXSPANNER PORTAL AND SENT IT TO THE BANGALORE CPC OF INCOME TAX DEPARTMENT. THE ASSESSEE SUBMITTE D THAT AT THAT TIME SHE WAS HAVING PREGNANCY OF 5 MONTHS AND DUE TO IMMENSE WORK PRESSURE IN THE OFFICE SHE COULD NOT DEVOTE TIME TO SEE THE CONTENT S OF RETURN OF INCOME FILED BY THE ONLINE TAX RETURN FILING PORTAL TAXSPANNER AS SHE DID NOT UNDERSTAND THE FORM ALSO, HENCE SHE JUST SIGNED THE ITR-V AND SENT IT TO THE BANGALORE CPC OF INCOME TAX DEPARTMENT. THE ASSESSEE SUBMITTE D THAT KEEPING IN VIEW OF HER EARLIER EXPERIENCE WITH ONLINE TAX RETURN FI LING PORTAL TAXSPANNER PORTAL KEEPING IN VIEW THEIR EXPERIENCE (TAXSPANNER ) IN FILING THE RETURN OF INCOME WITH THE REVENUE, SHE DID NOT THINK ABOUT VE RIFYING THE RETURN OF INCOME FILED BY THEM. THE ASSESSEE SUBMITTED THAT I N THE MONTH OF JULY, 2013, WHEN SHE VISITED THE A.O.S OFFICE TO SUBMIT THE DETAILS RELATING TO SCRUTINY ASSESSMENT PROCEEDINGS U/S 143(3) READ WIT H SECTION 143(2) OF THE ACT, THEN ONLY SHE CAME TO KNOW THAT ONLINE TAX RET URN FILING PORTAL TAXSPANNER HAS COMMITTED A MISTAKE IN FILING THE RETURN OF INCOME OF THE ASSESSEE WITH THE REVENUE FOR THE ASSESSMENT YEAR 2 011-12 AND THE INCOME ITA 4887/MUM/2014 4 FILED IN THE RETURN OF INCOME IS DIFFERENT FROM THE INCOME REFLECTED IN THE FORM NO. 16 RECEIVED FROM HER EMPLOYER. THE ASSESSEE SUB MITTED THAT SHE REALIZED IN JULY 2013 THAT THE REFUND OF RS. 4,56,340/- FOR THE ASSESSMENT YEAR 2011- 12 RECEIVED FORM INCOME TAX DEPARTMENT WAS WRONGLY RECEIVED BY THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143 (3) READ WITH SECTION 143(2) OF THE ACT, THE A.O. FURTHER OBSERVED THAT T HE ASSESSEE HAS EARNED COMMISSION INCOME FROM M/S BUNIYAD RETAIL PVT. LTD. OF RS. 85,270/- WHICH WAS NOT OFFERED FOR TAXATION. THE SAID INFORMATION WAS RECEIVED BY THE AO FROM AIR INFORMATION DATA-BASE. SINCE THE ASSESSEE DID NOT DECLARE THE SAID INCOME OF RS.85,270/- IN THE RETURN OF INCOME FILED WITH THE REVENUE, THE AMOUNT OF RS. 85,270 WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER U/S.143(3) DATED 30/08/2013. DURI NG THE COURSE OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, THE A SSESSEE SUBMITTED THAT THE ASSESSEE HAS PURCHASED A FLAT FROM BROKER M/S BUNIY AD RETAIL PVT. LTD. IN KENSINGTON PARK' AT JAYPEE GREENS SECTOR-133 AND R ECEIVED COMMISSION INCOME OF RS. 85,270/- FROM M/S BUNIYAD RETAIL PVT. LTD. THE ASSESSEE SUBMITTED THAT THE SAID COMMISSION RECEIVED FROM BR OKER M/S. BUNIYAD RETAIL PVT. LTD IS CAPITAL RECEIPT AND THE SAME WAS REDUCE D BY HER FROM THE COST OF THE FLAT PURCHASED THROUGH BROKER M/S. BUNIYAD RETA IL PVT. LTD IN 'KENSINGTON PARK' AT JAYPEE GREENS SECTOR-133. THE ASSESSEE SUBMITTED THAT MERE NON-ACCEPTANCE OF SUBMISSION/EXPLANATION GIVEN BY THE ASSESSEE TO THE AO DOES NOT TANTAMOUNT TO FILING OF IN-ACCURATE PAR TICULARS OR CONCEALMENT OF INCOME AS NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO WHICH CONFIRMS THAT THE INCOME HAS BEEN CONCEALED BY THE ASSESSEE. THE A.O. ALSO OBSERVED THAT THE ASSESSEE HAS EARNED INTEREST FROM SAVINGS BANK ACCOUNT MAINTAINING WITH ICICI BANK OF RS. 16, 803/- WHICH WAS NOT OFFERED FOR TAXATION IN THE RETURN OF INCOME FILED WITH THE REVENUE. THE ITA 4887/MUM/2014 5 AMOUNT OF INTEREST INCOME FROM ICICI BANK OF RS. 16 ,803/- WAS ALSO ADDED TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT OR DER U/S.143(3) DATED 30/08/2013. DURING THE COURSE OF PENALTY PROCEEDING S U/S 271(1)(C) OF THE ACT, THE ASSESSEE SUBMITTED THAT DURING THE ASSESSM ENT YEAR 2011-12, THE ASSESSEE HAS EARNED INTEREST INCOME OF RS. 16,803 F ROM SAVINGS BANK ACCOUNT. THE SAME WAS NOT TAKEN IN RETURN OF INCOME FILED WITH THE REVENUE DUE TO OVERSIGHT AS THE DETAILS OF INTEREST INCOME WERE NOT AVAILABLE AT THE TIME OF FILING OF RETURN OF INCOME WITH THE REVENUE . THE ASSESSEE SUBMITTED THAT SHE WAS UNDER THE IMPRESSION THAT WHATEVER INC OME RECEIVED BY HER HAS BEEN INCORPORATED IN FORM 16 AND SHE CAME TO KNOW A BOUT THE INTEREST INCOME ONLY AT THE TIME OF SCRUTINY ASSESSMENT PROC EEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT. THE ASSESSEE SUBMIT TED THAT SHE HAS NOT DONE ANYTHING WILLFULLY OR INTENTIONALLY. THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE AND HELD THAT THE RETURN OF INCOME HAS BEEN SIGNED BY THE ASSESSEE HERSELF, NOT THE ONLINE TAX RETURN FILING PORTAL 'TAXSPANNER'. BEFORE SIGNING AN IMPOR TANT DOCUMENT LIKE ITR-V, THE ASSESSEE SHOULD CONFIRM WHETHER SHE IS SIGNING ON THE RIGHT DOCUMENT OR NOT. MOREOVER, IN ITS RETURN OF INCOME E-MAILED TO THE ASSESSEE, THE ONLINE TAX RETURN FILING PORTAL 'TAXSPANNER' SENT SUMMARY OF RETURN FILED WHEREIN TOTAL INCOME WAS SHOWN AS RS.2,34,882 AND REFUND OF RS. 4 ,24,500, WHICH THE ASSESSEE HAS CONFIRMED BY SIGNING IT. THEREFORE, TH E A.O. HELD THAT IT IS A GROSS NEGLIGENCE ON THE PART OF THE ASSESSEE. FURTH ER, THE ASSESSEE WRONGLY CLAIMED THAT THIS MISTAKE CAME NOTICE OF HER IN THE MONTH JULY, 2013 , THE INTIMATION DATED 24.11.2011 U/S 143(1) OF THE ACT W AS SENT TO THE ASSESSEE AND SUBSEQUENTLY REFUND OF RS.4,56,340/- WAS SENT T O THE ASSESSEE VIDE RECTIFICATION ORDER DATED 13-06-2012 U/S 154 OF THE ACT AND IT IS CLEAR FROM THE FACTS THAT THE ASSESSEE TRIED TO MISGUIDE THE R EVENUE AND THE ASSESSEE HAD MALA-FIDE INTENTION TO EVADE THE TAX. IN SUPPO RT, THE A.O. RELIED ON THE FOLLOWING DECISIONS:- ITA 4887/MUM/2014 6 I) AGGARWAL OIL & GENERAL MILLS LTD. V. CIT, 20 TAXMAN 383 (HONBLE PUNJAB & HARYANA HIGH COURT) II) PANKAJ RATHI V. CIT, 13 TAXMAN 115 (HONBLE CALCUTT A (HIGH COURT) THE A.O. ALSO HELD THAT THE ASSESSEE WAS WELL AWARE OF THE COMMISSION INCOME OF RS. 85,270/- RECEIVED FROM M/S. BUNIYAD R ETAIL PVT. LTD. BEFORE FILING OF RETURN OF INCOME WITH THE REVENUE FOR THE ASSESSMENT YEAR 2011-12 ON 26/06/2011, BUT THE ASSESSEE DID NOT OFFER THE S AME FOR TAXATION. SUCH INCOME CAME TO THE NOTICE OF THE A.O. THROUGH AIR I NFORMATION DATA-BASE ONLY WHEREIN IT IS SHOWN AS COMMISSION INCOME. SINCE COM MISSION INCOME CANNOT BE A CAPITAL RECEIPT, THE CONTENTION OF THE ASSESSE E WAS REJECTED BY THE A.O. THUS , THE AO HELD THAT THE ASSESSEE WILLFULLY CONC EALED THE INCOME FROM THE REVENUE. WITH RESPECT TO INTEREST INCOME OF RS.16,803/- , IT WAS HELD BY THE AO THAT THE ASSESSEE IS A HABITUAL TAX EVADER AND EVEN FOR ASSESSMENT YEAR 2010-11 IN THE SCRUTINY ASSESSMENT, RS.8,947/- WAS ADDED TO THE INCOME OF THE ASSESSEE. THERE IS NO EXCUSE OF IGNORANCE OF LAW AN D IT IS A WILLFUL FURNISHING OF IN-ACCURATE PARTICULARS OF INCOME. THE A.O. HELD THAT THE ASSESSEE ALSO FAILED TO AVAI L THE OPPORTUNITY OF FILING REVISED RETURN U/S. 139(5) OF THE ACT. THE ASSESSE E ALSO DID NOT PREFER ANY APPEAL AGAINST THE ABOVE ASSESSMENT ORDER DATED 30- 08-2013 PASSED U/S 143(3) OF THE ACT WHICH SHOWS THAT ASSESSEE HAS NO OBJECTION FOR ADDITIONS MADE TO HER INCOME AND HAS ACCEPTED THAT SHE HAS FI LED IN ACCURATE PARTICULARS OF INCOME. THE AO HELD THAT THE ASSESS EE CASE OF PENALTY IS COVERED UNDER EXPLANATION 1(B) TO SECTION 271(1)(C) OF THE ACT.THE ASSESSEE ITA 4887/MUM/2014 7 BEING AN EDUCATED PERSON DRAWING SALARY OF MORE THA N RS.20 LACS WAS AWARE OF CONSEQUENCES OF FALSIFYING THE FACTS. THUS, THE A.O. LEVIED MAXIMUM PENALTY U/S 271(1)(C ) OF THE ACT @ 300% OF THE TAX SO EVADED I.E. RS. 13,04,178/- ON THE ASSES SEE , VIDE PENALTY ORDERS DATED 20/02/2014 PASSED U/S 271(1)(C) OF THE ACT. 4.AGGRIEVED BY THE PENALTY ORDER DATED 20/02/2014 P ASSED BY THE AO U/S 271(1)(C) OF THE ACT, THE ASSESSEE PREFERRED AN APP EAL BEFORE THE CIT(A). 5. BEFORE THE CIT(A), THE ASSESSEE REITERATED THE S UBMISSIONS WHICH WERE MADE BEFORE THE A.O. WHICH ARE NOT REPEATED FOR SAK E OF BREVITY AND SUBMITTED THAT THERE WAS NO MALA-FIDE INTENTION ON THE PART OF THE ASSESSEE. IT IS A MISTAKE COMMITTED BY THE ONLINE TAX RETURN FILING PORTAL TAXSPANNER WHICH WAS ENGAGED BY THE ASSESSEE FOR FILING HER RE TURN OF INCOME WITH THE REVENUE AND THE ASSESSEE HAS NEVER TRIED TO MISLEAD THE REVENUE AND IT IS A NEGLIGENCE ON THE PART OF THE ONLINE TAX RETURN FIL ING PORTAL TAXSPANNER FOR WHICH THE ASSESSEE SHOULD NOT BE PENALIZED. THE ASS ESSEE SUBMITTED THAT SHE DID NOT FILED REVISED RETURN U/S. 139(5) OF THE ACT AS THE TIME FOR FILING REVISED RETURN HAS EXPIRED BUT PROMPTLY DEPOSITED BACK THE REFUND AMOUNT OF RS.4,56,340/- ON 14/08/2013 AND THE AO WAS INFORMED OF THE SAME ON 19- 08-2013. THE ASSESSEE CONTENDED THAT A.O. IS NOT JU STIFIED IN INVOKING THE EXPLANATION 1(B) TO SECTION 271(1)(C) OF THE ACT AN D LEVYING MAXIMUM PENALTY OF 300% FOR A MISTAKE COMMITTED BY THE PROFESSIONAL SERVICE PROVIDER. SIMILARLY, THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PURCHASED A FLAT FROM BROKER M/S BUNIYAD RETAIL PVT. LTD. AND RECEIVED CO MMISSION INCOME OF RS. 85,270/- FROM M/S BUNIYAD RETAIL PVT. LTD. THE ASSE SSEE SUBMITTED THAT THE SAID COMMISSION RECEIVED FROM BROKER M/S. BUNIYAD R ETAIL PVT. LTD IS CAPITAL RECEIPT AND THE SAME WAS REDUCED BY HER FROM THE CO ST OF THE FLAT PURCHASED THROUGH BROKER M/S. BUNIYAD RETAIL PVT. LTD AT 'KEN SINGTON PARK' AT JAYPEE ITA 4887/MUM/2014 8 GREENS SECTOR-133. THE ASSESSEE SUBMITTED THAT THE ABOVE RECEIPT OF RS. 85,270/- IS A DISCOUNT ON ITS INVESTMENT IN THE HOU SE PROPERTY WHICH AMOUNTS TO RECOVERY OF CAPITAL COST AND THE ASSESSE E HAS RIGHTLY REDUCED THE SAME FROM THE COST OF ACQUISITION OF THE PROPERTY. A MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE EXPLANATIONS OFFERED BY THE ASSESSEE IS BONA-FIDE AND THERE IS NO MALA-FIDE INTENTION WHICH ATTRACT HUGE PENALTY OF 300% THAT IS THE MAXIMUM PENALTY U/S 271(1)(C) OF T HE ACT. SIMILARLY, THE ASSESSEE SUBMITTED THAT INADVERTENTLY, THE ASSESSEE FAILED TO DECLARE THE INTEREST RECEIVED ON SAVINGS BANK ACCOUNT AMOUNTING TO RS. 16,803/- AND THE OMISSION WAS NEITHER INTENTIONAL NOR WILLFUL HENCE THE PENALTY LEVIED SHOULD BE DELETED. THE CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE OBSERVED THAT THE RETURN FILED BY THE ASSESSEE CONTAINS NUMBER OF INA CCURATE PARTICULARS AND INCOME HAS NOT BEEN OFFERED TO TAX FULLY IN RESPECT OF SALARY INCOME, INTEREST INCOME AND COMMISSION INCOME. THE CIT(A) OBSERVED T HAT THE AO HAS CLEARLY BROUGHT OUT THAT THE EXPLANATION OFFERED IN RESPECT OF THESE DEFAULTS IS NEITHER SUBSTANTIATED NOR THE BONA-FIDES OF THE ASSESSEE HA VE BEEN ESTABLISHED. THE ONLINE TAX RETURN FILING PORTAL TAXSPANNER HAD SE NT A SUMMARY OF THE RETURN PREPARED BY THEM TO THE ASSESSEE, ALONG WITH THE IT R-V WHICH THE ASSESSEE CONFIRMED AND SIGNED, WITHOUT CARING TO VERIFY IT. THERE IS GLARING MISTAKE FOR ANY TAX-PAYER TO HAVE OVERLOOKED, ESPECIALLY BY ANY EDUCATED PERSON. IT IS ALSO SEEN THAT THE ASSESSEE RECEIVED THE REFUND OF RS. 4 ,56,340/- SOON AFTER THE ORDER U/S 154 DATED 13.06.2012 WAS PASSED , WHICH W AS DEPOSITED BY HER IN HER BANK ACCOUNT. NO ACTION WAS TAKEN BY THE ASSESS EE TO INTIMATE THE AO OR THE DEPARTMENT ABOUT THIS WRONG REFUND, TILL HER CA SE WAS TAKEN-UP FOR SCRUTINY PROCEEDINGS U/S 143(3) READ WITH SECTION 1 43(2) OF THE ACT IN JUNE- JULY 2013. THIS CLEARLY CASTS A DARK SHADOW ON THE BONA FIDES OF THE ASSESSEE. THE EXCUSE OF BEING TOO BUSY IN HER OFFICE WORK AND OF NOT UNDERSTANDING ITA 4887/MUM/2014 9 INTRICACIES OF INCOME TAX LAW AND PROCEDURE, IS NOT AN EXCUSE. THE CIT(A) OBSERVED THAT THE ASSESSEE CANNOT SHIFT THE BLAME O F INACCURATE PARTICULARS TO THE ONLINE TAX RETURN PREPARER 'TAXSPANNER', AS FIR STLY IT IS THE RESPONSIBILITY OF THE ASSESSEE TO BE VIGILANT AND TO FILE CORRECT PAR TICULARS OF INCOME AS IT IS SHE WHO VERIFIED THE RETURN AND CERTIFIED IT TO BE CORR ECT AND TRUE TO THE BEST OF HER KNOWLEDGE. SECONDLY IT IS CLEAR THAT THE ASSESSEE H AD NOT INTIMATED THE TAX PREPARER ABOUT THE INTEREST INCOME AND THE COMMISSI ON INCOME EARNED BY HER, WHICH SHOULD HAVE BEEN INCLUDED IN THE RETURN. THE A.O. HAS CORRECTLY BROUGHT OUT THAT THE COMMISSION EARNED BY THE ASSES SEE CANNOT BE TREATED AS CAPITAL RECEIPT, ESPECIALLY WHEN THE PAYER OF THE C OMMISSION HAD CLEARLY MENTIONED THE SAME AS COMMISSION INCOME OF THE ASSE SSEE. THE CIT(A) ACCORDINGLY HELD THAT THE ACTION OF THE A.O. IN HOL DING THAT THE ASSESSEE IS LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT IS CORR ECT. HOWEVER NOTHING HAS BEEN BROUGHT ON RECORD BY THE AO TO JUSTIFY THE LEVY OF PENALTY AT 300% OF THE TAX SOUGHT TO BE EVADED. PENALTY OF 300% OF TAX SOUGHT TO BE EVADED IS LEVIED ONLY IN THE RAREST OF THE RARE CASES, WHICH HAS NOT BEEN MADE OUT TO BE THE CASE HERE AND THE CIT(A) DIRECTED THE A.O. TO RESTRICT T HE LEVY OF PENALTY AT 100% OF THE TAX SOUGHT TO BE EVADED, VIDE ORDERS DATED 23-0 5-2014. 6. AGGRIEVED BY THE ORDERS DATED 23-05-2014 PASSED BY THE CIT(A), THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. HAS LEVIED PENALTY AT THE RATE OF 300% OF THE TAX SOUGHT TO BE EVADED WHICH IS THE MAXIMUM PENALTY U/S. 271(1)(C) OF THE ACT, WHILE TH E CIT(A) REDUCED THE AFORE-STATED PENALTY TO 100% OF THE TAX SOUGHT TO B E EVADED AND ALLOWED PART RELIEF TO THE ASSESSEE. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE FILED RETURN OF INCOME THROUGH ONLINE TAX RETURN FILING P ORTAL TAXSPANNER. APPARENTLY THERE WAS AN ERROR COMMITTED BY THE ONLI NE TAX RETURN FILING PORTAL TAXSPANNER. THERE WAS CALCULATION ERROR IN COMPU TING SALARY INCOME . THE ITA 4887/MUM/2014 10 ASSESSEES COUNSEL SUBMITTED THAT SHE IS A SALARIED EMPLOYEE AND RECEIVED SALARY FROM M/S. AC NIELSON RESEARCH SERVICES PVT. LTD OF RS. 26,376/- AND M/S. HINDUSTAN UNILEVER LIMITED OF RS.21,22,182/- T OTALING RS. 21,48,558/- DURING THE YEAR. THE SAID ONLINE TAX RETURN FILING PORTAL TAXSPANNER WAS DULY FURNISHED THE COPIES OF FORM NO 16 / SALARY DE TAILS RECEIVED FROM THE EMPLOYERS. THE SAID TAX FILING ONLINE TAX RETURN FI LING PORTAL TAXSPANNER PUNCHED SALARY RECEIVED FROM HINDUSTAN LEVER LIMITE D AS RS.2,09,614/- BY MISTAKE INSTEAD OF CORRECT SALARY OF RS.20,96,914 /- AND ALSO THE SAID ONLINE PORTAL DID NOT TAKE INTO EFFECT ANY OTHER INCOME OF (-) RS.1,51,726/- REPORTED BY THE ASSESSEE AND HENCE THE ERROR IN FILING THE R ETURN OF INCOME WITH THE REVENUE. THE DETAILS ARE PLACED IN PAPER BOOK FILED WITH THE TRIBUNAL. THE LD COUNSEL SUBMITTED THAT DUE TAXES HAS BEEN DULY DEDU CTED AT SOURCE BY BOTH THE EMPLOYERS AS APPLICABLE AS PER THE ACT. THERE W AS NO MALA-FIDE INTENTION ON THE PART OF THE ASSESSEE TO EVADE TAXES. THERE IS NEGLIGENCE ON THE PART OF THE ONLINE TAX RETURN FILING PORTAL TAXSPANNER. THE ASSESSEE WAS PREGNANT AT THAT TIME AND DUE TO WORK PRESSURE ETC., SHE TRU STED THE WORK OF FILING ONLINE RETURN TO ONLINE TAX RETURN FILING PORTAL T AXSPANNER AND DID NOT CHECK THE DETAILS SENT BY THE SAID ONLINE PORTAL BEFORE S IGNING AND SENDING THE SAME TO INCOME TAX DEPARTMENT AT CPC BANGALORE. THE SAID ONLINE TAX RETURN FILING PORTAL TAXSPANNER ALSO FILED RETURN OF INCOME FOR THE EARLIER YEAR ON BEHALF OF THE ASSESSEE. IT IS A MISTAKE COMMITTED BY THE ONLI NE TAX RETURN FILING PORTAL TAXSPANNER AND THE ASSESSEE HAS NEVER TRIED TO MI SLEAD THE REVENUE AND IT IS A NEGLIGENCE ON THE PART OF THE ONLINE TAX RETUR N FILING PORTAL TAXSPANNER FOR WHICH THE ASSESSEE SHOULD NOT BE PENALIZED. THE ASSESSEES COUNSEL SUBMITTED THAT THE REFUND ORDER RECEIVED BY THE ASS ESSEE WAS DEPOSITED WITH THE BANK AND ASSESSEE DID NOT PAY MUCH ATTENTION TO CHECK THE DETAILS AS SHE WAS BUSY WITH NEW BORN BABY AND WITH HER WORK AT TH E TIME OF RECEIVING OF REFUND.SHE CAME TO KNOW ABOUT THE MISTAKE IN JULY 2 013 WHEN SHE VISITED OFFICE OF THE AO IN CONNECTION WITH SCRUTINY PROCEE DINGS AND IMMEDIATELY ON REALIZING THE MISTAKE COMMITTED BY THE ONLINE TAX R ETURN FILING PORTAL ITA 4887/MUM/2014 11 TAXSPANNER , SHE IMMEDIATELY DEPOSITED THE SAID R EFUND OF RS.4,56,340/- TO THE CREDIT OF GOVERNMENT ON 14/08/2013 AND INTIMATE D TO THE AO ON 19/08/2013. THE COPY OF CHALLAN IS PLACED IN PAPER BOOK FILED WITH THE TRIBUNAL. THE LD COUNSEL SUBMITTED THAT BY THE TIME SHE REALIZED THE MISTAKE , THE TIME FOR FILING REVISED RETURN U/S. 139(5) OF T HE ACT HAD ALREADY EXPIRED. THE LD. COUNSEL CONTENDED THAT A.O. IS NOT JUSTIFIE D IN INVOKING THE EXPLANATION 1(B) TO SECTION 271(1)(C) OF THE ACT AN D LEVYING MAXIMUM PENALTY OF 300% FOR A MISTAKE COMMITTED BY THE PROFESSIONAL SERVICE PROVIDER. SIMILARLY, WITH RESPECT TO THE COMMISSION INCOME, T HE ASSESSEE COUNSEL SUBMITTED THAT THE ASSESSEE HAS PURCHASED A FLAT FR OM BROKER M/S BUNIYAD RETAIL PVT. LTD. AND RECEIVED DISCOUNT AS COMMISSIO N OF RS. 85,270/- FROM M/S BUNIYAD RETAIL PVT. LTD WHICH IS CERTIFIED BY T HE SAID BUNIYAD RETAILS PRIVATE LIMITED WHICH IS PLACED AT PAGE 17 PAPER BO OK FILED WITH THE TRIBUNAL . THE ASSESSEE SUBMITTED THAT THE SAID DISCOUNT AS CO MMISSION RECEIVED FROM BROKER M/S. BUNIYAD RETAIL PVT. LTD IS CAPITAL RECE IPT AND THE SAME WAS REDUCED BY THE ASSESSEE FROM THE COST OF THE FLAT P URCHASED THROUGH BROKER M/S. BUNIYAD RETAIL PVT. LTD IN 'KENSINGTON PARK' A T JAYPEE GREENS SECTOR- 133. THE ASSESSEE SUBMITTED THAT THE ABOVE RECEIPT OF RS. 85,270/- IS A DISCOUNT ON ITS INVESTMENT IN THE HOUSE PROPERTY WH ICH AMOUNTS TO RECOVERY OF CAPITAL COST AND THE ASSESSEE HAS RIGHTLY REDUCE D THE SAME FROM THE COST OF ACQUISITION OF THE PROPERTY. A MERE MAKING OF THE CLAIM WHICH IS NOT SUSTAINABLE IN LAW BY ITSELF WILL NOT AMOUNT TO FUR NISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF PARTICULARS OF INCOME. THE EXPLANATIONS OFFERED BY THE ASSESSEE IS BONA-FIDE A ND THERE IS NO MALA-FIDE INTENTION WHICH ATTRACT HUGE PENALTY OF 300% OF TAX SOUGHT TO BE EVADED THAT IS THE MAXIMUM PENALTY U/S 271(1)(C) OF THE ACT. S IMILARLY, THE ASSESSEE SUBMITTED THAT INADVERTENTLY, THE ASSESSEE FAILED T O DECLARE THE INTEREST RECEIVED ON SAVINGS BANK ACCOUNT WITH ICICI BANK A MOUNTING TO RS. 16,803/- AND THE OMISSION WAS NEITHER INTENTIONAL N OR WILLFUL , HENCE THE PENALTY LEVIED SHOULD BE DELETED. THE LD. COUNSEL R ELIED UPON THE DECISION OF ITA 4887/MUM/2014 12 HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CI T V. MS. SANIA MIRZA, [2013] 40 TAXMANN.COM 17 (AP) AND ALSO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PRICE WATER HOUSE COOPERS P. L TD. V. CIT (2012) 25 TAXMANN.COM 400 (SC). THE ASSESSEE IN CASE LAW PAPE R BOOK FILED WITH THE TRIBUNAL HAS ALSO RELIED UPON DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS LIMITED (2010)189 TAXMAN 322(SC), DECISIONS OF TRIBUNAL, MUMBAI IN MIMOSA INVESTMENT CO. PRIVATE LIMITED V. ITO (2009) SOT 470(MUM.TRIB) AND VIP INDUSTRIES LIM ITED (2009) 30 SOT 254(MUM.TRIB.) 8. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS DULY SIGNED THE RETURN OF INCOME FILED WITH REVENUE INCL UDING VERIFICATION/DECLARATION CONTAINED THEREIN THAT IT CONTAINS ALL INFORMATION WHICH IS TRUE AND CORRECT. THE ASSESSEE WAS GRANTE D REFUND ALSO IN JUNE 2012. THE ASSESSEE DID NOT COME FORWARD TO DEPOSIT BACK THE MONEY SO RECEIVED AS REFUND FROM THE GOVERNMENT. SHE SHOULD HAVE COME FORWARD VOLUNTARILY OF HER OWN TO DEPOSIT THE MONEY REFUNDE D TO HER. IF THIS CASE WOULD NOT HAVE COME IN SCRUTINY U/S 143(3) READ WIT H SECTION 143(2) OF THE ACT, THEN THE ASSESSEE WOULD NOT HAVE DEPOSITED TH E AMOUNT WITH GOVERNMENT TREASURY, WHICH WAS REFUNDED TO HER BY THE REVENUE. IN SUPPORT, THE LD. D.R. RELIED UPON THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF MAK DATA PRIVATE LIMITED V. CIT (2013) 38 TAXMANN.COM 448(SC) AND UOI V. DHARMENDRA TEXTILE PROCESSORS (2008) 13 SCC 369(SC). 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE JUDICIAL PRONOUNC EMENTS CITED BY BOTH THE PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE IS A SALARIED EMPLOYEE AND RECEIVED SALARY FROM M/S. AC NIELSON RESEARCH SERVI CES PVT. LTD OF RS. 26,376/- AND M/S. HINDUSTAN UNILEVER LIMITED OF RS. 21,22,182/- TOTALING RS. 21,48,558/- DURING THE YEAR. THERE WAS AN ERROR/MIS TAKE IN PUNCHING ITA 4887/MUM/2014 13 SALARY, WHILE FILING RETURN OF INCOME , RECEIVED B Y THEE ASSESSEE FROM HINDUSTAN LEVER LIMITED AS RS.2,09,614/- BY MISTA KE INSTEAD OF CORRECT SALARY OF RS.20,96,914/- AND ALSO NOT TAKING INTO EFFECT ANY OTHER INCOME OF (-) RS.1,51,726/- REPORTED BY THE ASSESSEE AND HENC E THE ERROR IN FILING THE RETURN OF INCOME WITH REVENUE. THE DETAILS ARE PLAC ED IN PAPER BOOK FILED WITH THE TRIBUNAL. THE ASSESSEE HAD SUBMITTED THAT SHE E NGAGED THE SERVICES OF ONLINE TAX RETURN FILING PORTAL TAXSPANNER WHOM T HE ASSESSEE GAVE ALL THE DETAILS OF HER INCOME AND THE SAID ONLINE TAX RETUR N FILING PORTAL TAXSPANNER COMMITTED ABOVE MISTAKES DUE TO THEIR NEGLIGENCE W HILE FILING RETURN OF INCOME OF THE ASSESSEE WITH THE REVENUE. WE HAVE O BSERVED THAT IT IS STATED BY THE ASSESSEE THAT SHE HAS PROVIDED HER FORM NO. 16 RECEIVED FROM HER EMPLOYER TO THE WEBSITE OF ONLINE TAX RETURN FILING PORTAL TAXSPANNER AND RECEIVED THE CONFIRMATION FROM THE SAID TAXSPANNE R ON 25/06/2011 STATING THAT ITR-V IS FILED AND ASSESSEE WILL GET ITR-V (AC KNOWLEDGEMENT) COPY FROM THEM IN 24 HRS. IT IS STATED THAT THE ASSESSEE RECE IVED THE ITR-V FROM THE SAID TAXSPANNER AND SENT IT TO THE CPC BANGALORE , INC OME TAX DEPARTMENT. THE ASSESSEE SUBMITTED THAT AT THAT TIME SHE WAS HAVING PREGNANCY OF 5 MONTHS AND DUE TO IMMENSE WORK PRESSURE IN THE OFFICE SHE COULD NOT DEVOTE TIME TO SEE THE CONTENT OF ITR FILED BY THE SAID TAXSPANNE R AS SHE DID NOT UNDERSTAND THE FORM ALSO, HENCE SHE JUST SIGNED THE ITR-V AND SENT IT TO THE BANGALORE CPC OF INCOME TAX DEPARTMENT. THE ASSESSE E SUBMITTED THAT KEEPING IN VIEW OF HER EARLIER EXPERIENCE WITH THE SAID TAXSPANNER AS WELL AS THEIR EXPERIENCE IN FILING THE RETURN OF INCOME, SH E DID NOT THINK ABOUT VERIFYING THE RETURN OF INCOME FILED BY THEM. THE ASSESSEE HAS ALSO FILED COPIES OF ACKNOWLEDGMENT OF FILING RETURN OF INCOME FOR THE PERIOD COMMENCING FROM ASSESSMENT YEAR 2009-10 TO 2015-16. FROM THE PERUSAL OF THE SAID ACKNOWLEDGEMENTS OF RETURN OF INCOME, WE FIND THE DETAILS OF RETURNED INCOME , TAX PAID AND REFUND CLAIMED AS UN DER : ITA 4887/MUM/2014 14 S.NO. ASSESSMENT YEAR DATE OF FILING RETURN OF INCOME RETURNED INCOME TAXES PAID REFUND CLAIMED 1. 2009-10 03.08.2009 540634 66117 0 2. 2010-11 26.06.2010 763192 133857 0 3. 2011-12 24.06.2011 134882 424501 424500 4. 2012-13 26.07.2012 2474570 611172 0 5. 2013-14 14.08.2013 2862722 711908 0 6. 2014-15 30.06.2014 2875700 714991 10 7. 2015-16 27.07.2015 4542260 1249840 0 THE PERUSAL OF THE ABOVE CHART SHOWS THAT THE ASSES SEE HAD CLAIMED REFUND OF TAXES ONLY IN THE ASSESSMENT YEAR 2011-12 UNDER AP PEAL AND IN THE LAST SEVEN YEARS SPANNING FROM ASSESSMENT YEAR 2009-10 T O 2015-16 EXCEPT ASSESSMENT YEAR 2011-12, NO ATTEMPT HAS BEEN MADE B Y THE ASSESSEE TO CLAIM REFUND OF TAXES FROM THE REVENUE. THE ASSESSE E DERIVES INCOME MAINLY FROM SALARY AND HER SALARY INCOME IS SUBJECTED TO D EDUCTION OF TAX AT SOURCE AND SHE COULD UNDER NORMAL CIRCUMSTANCES GAIN BY FI LING IN-ACCURATE PARTICULARS / CONCEALMENT OF INCOME BY WAY OF CLAIM ING REFUND OF TAXES FROM REVENUE. THE ABOVE CHART CLEARLY SHOWS THAT THE CO NDUCT OF THE ASSESSEE IS BONA-FIDE AND IT IS DUE TO THE ERROR AND MISTAKE IN THE ASSESSMENT YEAR 2011- 12 AS CONTENDED BY THE ASSESSEE , RETURN OF INCOME WAS WRONGLY FILED .AS SOON AS THE ASSESSEE CAME TO KNOW ABOUT THE ERROR/MISTAK E , SHE IMMEDIATELY TOOK STEPS TO DEPOSIT BACK THE REFUND OF TAXES SO RECEIV ED WITH THE GOVERNMENT TREASURY ON 14-08-2013 AND INTIMATED THE AO ALSO VI DE LETTER DATED 19-08- 2013. WE FIND THAT THE CONDUCT OF THE ASSESSEE I S BONA-FIDE AND THERE IS NO MALA-FIDE INTENTION ON THE PART OF THE ASSESSEE ALT HOUGH ERROR/MISTAKE TOOK PLACE IN FILING RETURN OF INCOME FOR ASSESSMENT YEA R 2011-12 UNDER APPEAL. IF ITA 4887/MUM/2014 15 THE ASSESSEE WOULD HAVE BEEN HABITUAL TAX EVADER AS CONTENDED BY THE REVENUE , THEN HER CONDUCT WOULD HAVE SHOWN THAT SH E IS REGULARLY SEEKING REFUND OF TAXES BY FILING ERRONEOUS RETURN OF INCOM E BY CONCEALING HER INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME WHIC H THE ABOVE CHART CLEARLY SHOWS OTHERWISE , WHEREAS THE RETURN OF INCOME TIL L ASSESSMENT YEAR 2012-13 WERE ALL FILED AS SET OUT ABOVE BEFORE THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT BY THE REVENUE FOR THE ASSESSMENT YEAR 2011-12 ON 31.08.2012. FURTHER, THE ASSESSEE SALARY INCOME WAS SUBJECTED TO DEDUCTI ON OF TAX AT SOURCE BY HER EMPLOYERS AND THE EMPLOYER ALSO INTIMATE THE REVENU E ABOUT THE GROSS SALARY PAID AND TAX SO DEDUCTED AT SOURCE ON SUCH SALARY B Y FILING QUARTERLY RETURN OF TDS IN FORM 24Q AND THUS, THE REVENUE IS FULLY A WARE OF THE SALARY INCOME OF THE TAX-PAYER IN ITS DATA-BASE. THE EMPLOYERS IS SUE FORM NO 16 TO EMPLOYEES WHEREBY ALL THE SALARY DETAILS ARE FURNIS HED ALONG WITH DETAILS OF TAX DEDUCTED AT SOURCE AND HENCE IT IS NOT POSSIBLE UNDER NORMAL CIRCUMSTANCES FOR A SALARIED EMPLOYEE TO EVADE TAXE S BY FILING IN-ACCURATE SALARY PARTICULARS OR CONCEALING SALARY INCOME IN T HE RETURN OF INCOME AS THE MISMATCH IN THE INFORMATION FURNISHED BY THE TAX-PA YER VIDE RETURN OF INCOME VIS--VIS INFORMATION WITH REVENUE IN ITS DATABASE WILL BE CAPTURED BY THE REVENUE. WE HAVE SEEN THAT THE AUTHORITIES BELOW HA VE USED THE STRONG WORDS LIKE HABITUAL TAX EVADER AGAINST THE ASSESSEE WHI CH IN OUR HUMBLE AND RESPECTFUL SUBMISSIONS ARE NOT CORRECT OBSERVATIONS OF THE AUTHORITIES BELOW AND WE DIRECT THAT ALL SUCH WORDS USED BY THE AUTHO RITIES BELOW STAND EXPUNGED FROM THE ORDERS OF THE AUTHORITIES BELOW. THE CITIZENS AND THE TAX- PAYERS OF THIS COUNTRY ARE PARTICIPANT IN THE NATIO N BUILDING AND ALSO CONTRIBUTOR TO THE EXCHEQUER AND TO USE SUCH HARSH WORDS AGAINST THEM ARE NOT WARRANTED EXCEPT IN EXCEPTIONAL PROVEN CASES. I N OUR CONSIDERED VIEW , THE CONDUCT OF THE ASSESSEE WAS NOT MALA-FIDE AND CONTE MPTUOUS AND THE ASSESSEE HAD COME FORWARD BY OFFERING A BONA-FIDE E XPLANATION ABOUT THE ERROR COMMITTED BY THE ONLINE TAX RETURN FILING POR TAL TAXSPANNER AND HENCE IN OUR CONSIDERED VIEW, THE ASSESSEE IS NOT LIABLE FOR PENALTY U/S 271(1)(C) OF ITA 4887/MUM/2014 16 THE ACT AS THE CASE IS COVERED BY THE EXCEPTIONS AS CONTAINED IN THE EXPLANATION 1(B) TO SECTION 271(1)(C) OF THE ACT . EVEN WITH RESPECT TO THE DISCOUNT AS COMMISSION INC OME RECEIVED BY THE ASSESSEE, THE ASSESSEE HAS PURCHASED A FLAT FROM BR OKER M/S BUNIYAD RETAIL PVT. LTD. AND RECEIVED DISCOUNT AS COMMISSION INCOM E OF RS. 85,270/- FROM M/S BUNIYAD RETAIL PVT. LTD. AND THE ASSESSEE SUBMI TTED THAT THE SAID DISCOUNT AS COMMISSION INCOME RECEIVED FROM BROKER M/S. BUNIYAD RETAIL PVT. LTD IS CAPITAL RECEIPT AND THE SAME WAS REDUCE D BY THE ASSESSEE FROM THE COST OF THE FLAT PURCHASED THROUGH BROKER M/S. BUNI YAD RETAIL PVT. LTD IN 'KENSINGTON PARK' AT JAYPEE GREENS SECTOR-133. THE VIEW ADOPTED BY THE ASSESSEE IS A PLAUSIBLE BONA-FIDE VIEW ALTHOUGH THE SAME DID NOT FOUND FAVOUR WITH THE REVENUE AND THE ASSESSEE CHOSE NOT TO FILE APPEAL AGAINST THE SAID ADDITIONS BUT THAT DOES NOT MEAN THAT EVERY CLAIM W HICH IS NOT SUSTAINED BY THE REVENUE WILL MAKE THE TAX-PAYER LIABLE TO PENAL TY U/S. 271(1)(C) OF THE ACT. THE CLAIM OF THE ASSESSEE WAS PLAUSIBLE AND BONA-FI DE AND WE HOLD THAT NO PENALTY CAN BE IMPOSED U/S 271(1)(C) OF THE ACT ON THIS COUNT. WITH RESPECT TO THE AMOUNT OF RS. 16,803/-, IT WAS STATED THAT INADVERTENTLY THE ASSESSEE FAILED TO DECLARE THE INTEREST RECEIVE D ON SAVINGS BANK ACCOUNT AMOUNTING TO RS. 16,803/- AND THE OMISSION WAS NEIT HER INTENTIONAL NOR WILLFUL.THE AMOUNT INVOLVED IS ALSO TRIVIAL. IN OUR CONSIDERED VIEW, THERE IS NO DELIBERATE ATTE MPT ON THE PART OF THE ASSESSEE AND IT IS NOT A FIT CASE TO IMPOSE PENALTY U/S 271(1)(C) OF THE ACT ON THE ASSESSEE AS THE CONDUCT OF THE ASSESSEE IF SEEN IN CONTEXT OF PRECEDING AND SUCCEEDING YEARS AS SET-OUT ABOVE DOES NOT WARR ANT IMPOSITION OF THE PENALTY U/S 271(1)(C) OF THE ACT KEEPING IN VIEW PE CULIAR FACTS AND CIRCUMSTANCES OF THE CASE AS SET OUT ABOVE AS WE FI ND THAT NO ATTEMPT HAS BEEN MADE BY THE ASSESSEE IN THE PRECEDING AND SUC CEEDING YEARS AS SET OUT ITA 4887/MUM/2014 17 ABOVE TO FILE INCORRECT INCOME AND MAKE AN ATTEMPT TO CLAIM REFUND FROM THE REVENUE , EXCEPT IN THE ASSESSMENT YEAR UNDER APPEA L WHICH ERRORS HAVE ALSO BEEN DULY EXPLAINED BY THE ASSESSEE BY FURNISHING A BONA-FIDE EXPLANATION AND EVERY ERROR CANNOT MAKE ASSESSEE LIABLE TO PENA LTY U/S 271(1)(C) OF THE ACT. CONSIDERING ALL THE FACTS AND CIRCUMSTANCES O F THE CASE, WE DELETE THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT AS CONFIRMED /SUSTAINED BY THE CIT(A). WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 4887/MUM/2014 FOR THE ASSESSMENT YEAR 2011-12 IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH APRIL, 2016. # $% &' 20-04-2016 ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 20-04-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI
