SATPATI MACHHIMAR VIVIDH KARYAKARI SAHKARI SOCIETY LIMITED, Thane V. ACIT, PALGHAR CIRCLE, PALGHAR

ITA 4906/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3454 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 21-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Principle of natural justice; Set aside
• Section: 271(1)(c); 80P; 274; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4906 /MUM/2018 ASSESSMENT YEAR: 2012 - 13 SATPATI MACHHIMAR VIVIDH KARYAKARI SAHKARI SOCIETY LTD., SATPATI MACHHIMAR BLDG, B/H GOVT. HOSPITAL, SATPATI PALGHAR, DIST: THANE. VS. ASSISTANT COMMISSIONER OF INCOME TAX, PALGHAR CIRCLE, PALGHAR BIDCO ROAD, DIST. PALGHAR - 401404. PAN NO. AAABS1082L APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. V. VINOD KUMAR, DR DATE OF HEARING : 18 /02/2020 DATE OF PRONOUNCEMENT : 24/02/2020 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 13. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , THANE [IN SHORT CIT(A)] AND ARISES OUT OF THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT 1961, (THE ACT). THOUGH THE CASE WAS FIXED FOR HEARING ON 04.12.2019 AND 18.02.2020, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE ABOVE DATES. AS THERE IS NON - COMPLIANCE BY THE ASSESSEE, WE ARE PROCEEDING TO DISPOSE OFF THIS AP PEAL AFTER EXAMINING THE MATERIALS SATPATI MACHHIMAR VIVIDHKARYAKARI SAHKARI SOCIETY LTD ITA NO. 4906/MUM/2018 2 AVAILABLE ON RECORD AND AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE (DR). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : 1) THE ASSESSING OFFICER HAD MADE AN ERROR IN LEVY OF PENALTY U/S 271(1)(C) R.W.S 274 OF INCOME TAX ACT 1961 WITHOUT SPECIFICALLY MENTION ING UNDER WHICH LIMB OF THE SECTION THE PENALTY IS BEING LEVIED WHETHER FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULAR OF INCOME. 2) THE LD. CIT (APPEAL) WHILE CONFIRMING THE PENA LTY ORDER IGNORED THE SUBMISSION OF THE APPELLANT TO KEEP THE PENAL PROCEEDINGS IN ABEYANCE TILL THE QUANTIFICATION OR DER BEING PASSED AND PROVIDE OPPORTUNITY OF HEARING AFTER THE QUANTIFICATION ORDER BEING PASSED. 3) THE PENALTY ORDER PASSED BY THE FAA WAS A GAINST THE PRINCIPLE OF NATURAL JUSTICE. 4) THE ORDER APPEAL AGAINST IS BAD IN LAW AND AGAINST THE PRINCIPLE OF NATURAL JUSTICES AND TAX JURISPRUDENCE. 5) THE ORDER APPEAL AGAINST IS BASED ON SURMISES AND CONJECTURES. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE, A CO - OP. SOCIETY, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2012 - 13 ON 27.09.2012 DECLARING TOTAL INCOME AT RS. NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) , ON PERUSAL OF THE ANNUAL REPORT OF THE ASSESSEE , OBSERVED THAT IT HAD SHOWN INCOME FROM TELECOM T OWER AT RS.5,97,200/ - . FURTHER OBSERVING THAT THE SAME IS NOT ALLOWABLE AS A DEDUCTION AS PER PROVISIONS OF SECTION 80P, THE AO MADE AN ADDITION OF RS.5,97,200/ - . SUBSEQUENTLY, THE AO INITI ATED PENALTY PROCEEDINGS U/S 271(1)(C) ON THE REASON THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80P ON INCOME FROM SATPATI MACHHIMAR VIVIDHKARYAKARI SAHKARI SOCIETY LTD ITA NO. 4906/MUM/2018 3 TELECOM TOWER, WHICH WAS NOT ALLOWABLE. THEREFORE, THE AO LEVIED A MINIMUM PENALTY OF RS.1,99,047/ - U/S 271(1)(C) OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT THE LD. CIT(A) VIDE ORDER DATED 14.05.2018 HELD THE PENALTY IMPOSED BY THE AO A S CONFIRMED, BUT RULED THAT IT WOULD BE IMPOSED ON THE NET INCOME FROM HOUSE PROPERTY, AFTER ALLOWING DEDUCTION U/S 24(A) OF THE ACT. 5. BEFORE US, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE INSTA NT CASE, THE ASSESSEE - SOCIETY HAD CL AIMED INCOME OF RS.5,97,200/ - FROM TELECOM TOWER AND CLAIMED AS DEDUCTION U/S 80P OF THE ACT. HOWEVER , THE AO ADDED RS.5,97,200/ - AS INCOME FROM OTHER SOURCES AND LEVIED A PENALTY OF RS.1,99,047/ - U/S 271(1)(C) OF THE AC T. IN CIT V. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 189 TAXMAN 322 (SC), IT IS HELD BY THE HONBLE SUPREME COURT THAT A MERE MAKING OF CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING INCOM E OF ASSESSEE. THUS MERELY BECAUSE THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80P IN THE INSTANT CASE, WHICH CLAIM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE R EVENUE, THAT BY ITSELF WOULD NOT ATTRACT PENALTY U/S 271(1)(C) OF THE ACT. THE RATIO LAID DOWN IN THE ABOVE DECISION OF THE HONBLE SUPREME COURT SQUARELY APPLIES TO THE FACTS OF THE CASE. RESPECTFULLY FOLLOWING IT, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE PENALTY OF RS.1,99,047/ - LEVIED BY THE AO. SATPATI MACHHIMAR VIVIDHKARYAKARI SAHKARI SOCIETY LTD ITA NO. 4906/MUM/2018 4 7. IN THE RESULT, THE APPEAL IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/02/2020. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 24/02/2020 RAHUL SHARMA, SR. P.S. 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// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI