Ravindra Gopikishan Agrawal, Latur V. Income tax Officer, Latur

ITA 504/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6077 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI R.S. SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.504/PUN/2017 / ASSESSMENT YEAR : 2010-11 SHRI RAVINDRA GOPIKISHAN AGRAWAL, SAI ROAD, A/P ARVI, TALUKA : LATUR, LATUR-413 512 PAN : ABVPA5353L .... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD- 3(3), LATUR . / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 21.01.2019 / DATE OF PRONOUNCEMENT : 22.01.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE LD. CIT(APPEALS)-2, AURANGABAD DATED 05.04.2016 FOR THE AS SESSMENT YEAR 2010-11 AS PER FOLLOWING GROUNDS OF APPEAL ON RECORD: 1. THE HON'BLE CIT(A) HAS NOT LOOKED INTO FACT OF T HE CASE THAT THERE WAS GENUINE MISTAKE WHILE SUBMISSION OF ORIGINAL RETURN OF INCOME AND REVISED RETURN IS SUBMITTED TO CORRECT THE MISTAKE HAPPENED DUE TO OVERSIGHT. THERE WAS NO INTENTION TO CONCEAL INCOME IN ORIGINAL RETURN OF INCOME. 2. CIT(A) HAS ERRED WITH FACT OF CASE AND THEREFORE HIS ORDER OF AGREEING WITH LEVY OF PENALTY FOR CONCEALMENT SHOULD BE SET ASIDE. 3. I APPEAL THAT THE PENALTY LEVIED U/S.271(1)(C) O F RS.51,690/- IS UNJUST AND NEED TO BE DROPPED. 2 ITA NO.504 /PUN/2017 A.Y.2010-11 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VARY AND /OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THE CONFIRMAT ION OF PENALTY LEVIED U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) FOR RS.51,690/- ON ACCOUNT OF CONCEALMENT OF INCOME. 3. AT THE OUTSET WE NOTICE THAT THIS APPEAL IS TIME BAR RED BY 245 DAYS. WE HAVE PERUSED THE CASE RECORD AND FIND THAT FOR THE INTE REST OF JUSTICE AND CONSIDERING THE INCOME TAX LAWS AS WELFARE LEGISLATION, WE SH OULD CONDONE THE DELAY AND HEAR THE APPEAL ON MERITS. ACCORDINGLY, WE DO SO. 4. AT THE TIME OF HEARING NEITHER THE ASSESSEE NOR HIS A UTHORIZED REPRESENTATIVE WAS PRESENT. WE HAVE RECORDED THE PRESENCE OF T HE LD. DR. 5. THAT ON PERUSAL OF THE PENALTY ORDER PASSED U/S.271(1 )(C) OF THE ACT, THE BRIEF FACTS EMERGING IN THIS CASE ARE THAT THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 08.03.2013 DETERMINING TOTAL INCOME AT RS.10,51,200/- AS AGAINST RETURN INCOME OF RS.8,83,920/-. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS ON VERIFICATION OF CREDITORS, IT WA S NOTICED BY THE ASSESSING OFFICER THAT ASSESSEE HAS SHOWN UNSECURED LOAN FROM AMIT JALAN AT RS.20,00,000/- WAS AGAINST THE INVESTMENT MADE IN THE PR AYAJA CITY, PUNE. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THIS PRO PERTY WAS PROPOSED TO BE PURCHASED FROM AMIT JALAN WHO HAS ALREADY BOOKED THIS PROPERTY WITH THE PROPERTY DEALER. THEREAFTER, THE ASSESSEE HAS TRANSFERRE D THE RIGHT TO THE THIRD PARTY OF WHICH NO DOCUMENTS ARE PREPARED. THESE TRANSA CTIONS WERE MADE ONLY BY GIVING PART PAYMENT. FROM THESE TRANSACTIONS, H E HAS RECEIVED INCOME AND CREDITED TO THE P & L ACCOUNT. HOWEVER, THE SAME H AS NOT BEEN TAKEN IN THE ORIGINAL COMPUTATION OF INCOME. 3 ITA NO.504 /PUN/2017 A.Y.2010-11 6. THAT FROM PERUSAL OF THE PENALTY ORDER OF ASSESSING O FFICER AS WELL AS THE ORDER OF LD. CIT(APPEALS), THE MAIN CONTENTION OF THE R EVENUE IS THAT IT IS BECAUSE OF THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICE R ASKING THE ASSESSEE TO FILE REVISED RETURN THAT ALL THE DETAILS OF THE TRANSACTIONS WAS INCORPORATED THEREIN WHICH WAS NOT THERE IN THE ORIGINAL R ETURN OF INCOME BY THE ASSESSEE. IF THE QUESTIONNAIRE WAS NOT ISSUED BY THE ASSESSING OFFICER AND REVISED RETURN WAS NOT ASKED TO BE FILED THEN THE ASSE SSEE WOULD HAVE CONCEALED THIS INCOME FROM RETURN. THE ACTION OF THE ASSES SEE THEREFORE IN FILING REVISED RETURN IS NOT SUO-MOTO , HENCE, ONCE THE TRANSACTIONS WERE NOT THERE IN THE ORIGINAL RETURN THERE IS CONCEALMENT OF INCOME. 7. WE HAVE PERUSED THE CASE RECORD, EXAMINED THE DOCU MENTS AVAILABLE ON RECORDS AND ANALYZED THE FACTS AND CIRCUMSTANCES IN TH IS CASE. THE CONTENTION OF THE REVENUE IS THAT IN THE REVISED RETURN DETAILS OF TRANSACTIONS WHICH ARE MENTIONED IN THE PENALTY ORDER WAS NOT SHOWN SUO-MOTO BUT BECAUSE OF THE FACT THAT ASSESSING OFFICER HAD ASKED THE ASSESSEE THROUGH QUESTIONNAIRE TO FILE DETAILS IN THE REVISED RETURN THAT RES ULTED IN PROVIDING DETAILS OF TRANSACTIONS IN SUCH RETURN. IN ABSENCE OF THIS EXERCISE BY THE ASSESSING OFFICER, THE ASSESSEE WOULD HAVE CONCEALED THE IN COME. HOWEVER, IN THE PENALTY ORDER, WE FIND THAT IT IS ADMITTED BY THE ASS ESSING OFFICER HIMSELF THAT FROM TRANSACTIONS THE INCOME RECEIVED HAS BEEN CRE DITED TO THE P & L ACCOUNT OF THE ASSESSEE. THIS FACTS SIGNIFIES THAT THE INTENTION OF THE ASSESSEE WAS NEVER TO DEFRAUD THE REVENUE. THE DETAILS OF THE TRANSACTIONS THRO UGH WHICH THE INCOME HAS BEEN RECEIVED, WAS THERE IN THE P & L ACCOUN T OF THE ASSESSEE, WHICH INADVERTENTLY NOT THERE IN THE ORIGINAL RETURN OF IN COME, HOWEVER, THOSE WERE AGAIN FILED IN THE REVISED RETURN OF THE ASSESSEE. THE RE WAS NO DELIBERATE INTENTION FROM THE FACTS ON RECORD WHICH CAN EVEN HINT TH AT THE ASSESSEE WAS 4 ITA NO.504 /PUN/2017 A.Y.2010-11 TRYING TO CONCEAL HIS INCOME. THE BOOKS OF ACCOUNT ESPEC IALLY P & L ACCOUNT WERE ALREADY FILED WITH THE DEPARTMENT. ALL THE TRANSACTION S FROM WHICH INCOME EARNED WAS MENTIONED THEREIN. 8. IN VIEW OF THE MATTER, WE ARE OF THE OPINION THAT THE PENALTY ORDER IS LIABLE TO BE QUASHED. THUS, THE ORDER OF CIT(A) IS SET-ASID E AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 22 ND DAY OF JANUARY, 2019. SD/- SD/- R.S. SYAL PARTHA SARAT HI CHAUDHURY VICE-PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 22 ND JANUARY, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-2, AURANGABAD. 4. THE PR. CIT-2, AURANGABAD. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO.504 /PUN/2017 A.Y.2010-11 DATE 1 DRAFT DICTATED ON 21 .01.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 22 .01 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER