ITO WD 1, THANE V. SANSKAR LIGHTING, THANE

ITA 5170/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4164 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 06-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LALCHAND CHOUDHARY
• Keywords: Wrong claim

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 5170/MUM/2011 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 THE DCIT, PALGHAR CIRCLE, PALGHAR, BIDCO ROAD, PALGHAR, DIST. THANE. % % % % / VS. M/S.SANSKAR LIGHTING, PLOT NO.4, GALA NO.1,2,3 GENESIS INDUSTRIAL COMPLEX, KOLEGAON PALGHAR, DIST. THANE ' '# ./ ( ./ PAN/GIR NO. : ABBFS 9484Q ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , ' / APPELLANT BY: SHRI AARSI PRASAD *+') - , ' / RESPONDENT BY : SHRI LALCHAND CHOUDHARY % - .# / DATE OF HEARING : 15/07/2013 / & - .# / DATE OF PRONOUNCEMENT : 15/07/2013 '0 / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A)II, THANE DATED 29/03/2011 FOR AS SESSMENT YEAR 2007-08. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A)-II, THANE ERRED IN DELETING THE PENALTY OF RS.4,14,223/ - LEVIED BY THE A.O U/S. 271(1) (C) OF THE ACT, 1961. 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)- II, THANE ERRED IN NOT APPRECIATING THAT HAD THE CA SE NOT BEEN SELECTED FOR SCRUTINY THE WRONG CLAIM MADE BY THE ASSESSEE WOULD HAVE GONE UNDETECTED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE IN LAW, THE LEARNED CIT(A)-II THANE FAILED TO APPRECIATE THE FACT THAT THE ASSESS EE TOOK NO STEPS TO RECTIFY THE WRONG CLAIM MADE BY IT DESPITE THE FACT THAT THE WR ONG CLAIM WAS CLEARLY REFLECTED IN ITS ACKNOWLEDGEMENT OF E-RETURN. ./ I.T.A. NO. 5170/MUM/2011 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 2 4. THE APPELLANT PRAYS THAT THE ORDER OF THE LEARN ED CIT(A)-II THANE BE CANCELLED AND THAT OF THE A.O RESTORED. 2. THE FACTS WHICH ARE NOT DISPUTED ARE THAT ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF MANUFACTURING OF ELECTRI CAL FITTINGS. THE RETURN WAS E- FIELD ELECTRONICALLY ON 31/10/2007. AS PER E-RETU RN THE TOTAL INCOME WAS COMPUTED AT NIL AND A REFUND OF RS.5,14,260/- WAS D ETERMINED, WHICH ACCORDING TO FINDINGS OF LD. CIT(A) WAS NOT RECEIVED BY THE A SSESSEE. IT WAS THE CASE OF THE ASSESSEE THAT DUE TO MISTAKE IN FILING E-RETURN INC OME WAS COMPUTED AT NIL. HOWEVER, ALL THE FIGURES RELATING TO PROFIT AND LO SS ACCOUNT WERE PROPERLY FILLED IN THE E-RETURN. THEREFORE, THERE IS NO MALAFIDE INTE NTION OR FAILURE OF THE ASSESSEE TO DISCLOSE ALL THE FACTS NECESSARY IN THE RETURN O F INCOME ITSELF. THUS, IT WAS PLEADED THAT PENALTY IS NOT LEVIABLE. LD. CIT(A) HAS ACCEPTED SUCH CONTENTION OF THE ASSESSEE. ACCORDING TO FINDINGS RECORDED BY LD . CIT(A) THE MISTAKE OCCURRED DUE TO FILLING 0 BY THE STAFF OF THE ASSESSEE I N THE COLOUMN OF INCOME IN THE E- FILED RETURN WHICH WAS UNINTENTIONAL AND BONAFIDE. THEREFORE, LD. CIT(A) HAS ARRIVED AT CONCLUSION THAT NO PENALTY IS LEVIABLE . THE DEPARTMENT IS AGGRIEVED, HENCE, HAS FILED THE AFOREMENTIONED GROUNDS OF APP EAL. 3. WE HAVE HEARD BOTH THE PARTIES. WE HAVE ALSO C AREFULLY GONE THROUGH THE ASSESSMENT ORDER, ORDER PASSED UNDER SECTION 271(1 ) (C) OF THE ACT AND ORDER PASSED BY LD. CIT(A). IN THE ASSESSMENT ORDER THE CONTENTION OF THE ASSESSEE HAS BEEN RECORDED BY THE AO THAT DUE TO TYPOGRAPHIC AL ERROR THE PARTICULARS OF INCOME IN THE E-RETURN OF INCOME HAD REMAINED TO BE FILLED IN. THIS CONTENTION OF THE ASSESSEE HAS BEEN REFUTED BY THE AO ON THE G ROUND THAT ASSESSEE HAS CLAIMED REFUND OF RS.5,14,260/- AND ON THIS GROUND HE HAS INITIATED THE CONCEALMENT PENALTY. THE CONTENTION OF THE ASSESSE E THAT ALL THE FACTS AND FIGURES AS PER AUDIT REPORT WERE DULY FILLED UP IN THE APPROPRIATE COLUMN IN THE E-RETURN HAS NOT BEEN CONTROVERTED BY THE AO. IT IS THE CASE OF THE ASSESSEE THAT THIS WAS THE FIRST YEAR WHEN ASSESSEE HAS FILED E-R ETURN AND IT IS ONLY A MISTAKE. THE REFUND WAS NEVER RECEIVED BY THE ASSESSEE. I N THIS VIEW OF THE SITUATION, WE ARE OF THE OPINION THAT THERE IS NO FAULT IN THE FINDINGS RECORDED BY LD. CIT(A) THAT SUCH ACT OF THE ASSESSEE WAS UN-INTENTIONAL A ND BONAFIDE. THE FACTS AND ./ I.T.A. NO. 5170/MUM/2011 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 3 CIRCUMSTANCES OF THE CASE SUPPORT SUCH CONCLUSION D RAWN BY LD. CIT(A). WE DECLINE TO INTERFERE AND THE APPEAL FIELD BY THE RE VENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/07/2013 . '0 - & #' 1 2%3 15/07/2013 - 4 SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; 2% DATED 15/07/2013 '0 '0 '0 '0 - -- - *.56 *.56 *.56 *.56 7'6&. 7'6&. 7'6&. 7'6&. / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- 4. 8 / CIT 5. 694 *.% , , / DR, ITAT, MUMBAI 6. 4: ; / GUARD FILE. '0% '0% '0% '0% / BY ORDER, +6. *. //TRUE COPY// < << < / = = = = (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS