DEPUTY COMMISSIONER OF INCOME TAX 1(2)(2), MUMBAI V. MODERN REALTY PRIVATE LIMITED , MUMBAI

ITA 5208/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6627 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 09-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Wrong claim
• Section: 271(1)(c); 142(1); 143(2); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO . 5208 /M/ 20 1 7 ( ASSESSMENT YEAR : 2013 - 14 ) DCIT 1(2)(2) R. NO. 535, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 . VS. M/S. MODERN REALTY PVT. LTD. 47, NEW MARINE LINES CHURCHGATE, MUMBAI - 400020. ./ ./ PAN/GIR NO. :AAGCM 1200 R ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 31 . 01 .201 9 DATE OF PRONOUNCEMENT : 27. 0 2 . 2019 O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 25.04.2017 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 2 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVAN T TO THE ASSESSMENT YEAR S 2013 - 14 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY AMOUNTING TO RS.23,53,569/ - IMPOSED U/S 271(1)(C) OF THE ACT. ASSESSEE BY: NONE DEPARTMENT BY: SHRI DURGA DUTT (SR. AR) ITA NO. 5208 /MUM/201 7 A.Y S . 2013 - 14 2 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR WITHDRAW THE AFORESAID GROUND OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.09.2013 FOR THE A.Y. 2013 - 14 DECLARING TOTAL INCOME TO THE TUNE OF RS.85,48,051/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. NOTICES U/ S 143(2) & 142(1) OF THE ACT ON 03.09.2014 WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE HAS DEBITED AN AMOUNT OF RS.80,48,623/ - BEING PROPERTY TAX . T HE NOTICE WAS GIVEN AND THE ASSESSEE FURNISH ED THE REPLY STATING THEREIN THAT THE ASSESSEE PAID T HE PROPERTY TAX IN SUM OF RS.80,48,623/ - IN THE RELEVANT ASSESSMENT YEAR AND ALSO PAID THE PROPERTY TAX IN SUM OF RS.76,16,731/ - IN THE S UBSEQUENT YEAR . T HE AO DISALLOWED THE PROPERTY TAX PAID IN THE SUBSEQUENT YEAR IN SUM OF RS.76,16,731/ - AND ADDED TO TH E INCOME OF THE ASSESSEE. THE PENALTY PROCEEDING U/S 271(C) OF THE ACT WAS INITIATED AND THE AO LEVIED THE PENALTY IN SUM OF RS.23,53,569/ - . FEELING AGGRIEVED , THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE AND DELETE THE PENALTY, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4 . WE HAVE HEARD THE ARGUMENT AND ADVANCED BY THE L D. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE RECORD CAREFULLY. BEFORE GOING FUR THER, WE DEEMED IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - ITA NO. 5208 /MUM/201 7 A.Y S . 2013 - 14 3 3.3. I HAVE GONE THROUGH THE PENALTY ORDER DID. 28.09.2016 AND ALSO THE ASSESSMENT ORDER DTD. 20.03.2016 WHEREIN THE AO HAS MENTIONED THAT THE APPELLANT COMPANY HAS ACTUALLY PA ID RS. 4,31,892/ - ON PROPERTY TAX OUT OF RS.80,48,623/ - AND BALANCE OF RS.76,16,731/ - PAID IN SUBSEQUENT YEAR VIDE PAGE NO. 2 OF ASSESSMENT ORDER DTD. 20.03.2016 AND THE SAME HAS BEEN REPEATED IN THE PENALTY ORDER ALSO. ON THE OTHER HAND, THE AR OF THE APP ELLANT VEHEMENTLY ARGUES THAT THE APPELLANT COMPANY HAD DULY HANDED OVER THE REQUISITE CHEQUES TO MUNICIPAL AUTHORITIES, HOWEVER, BMC AUTHORITIES HAVE NOT PRESENTED THE SAME TO THE BANK FOR REALIZATION AND THEREAFTER THEY HAVE INSTRUCTED THE APPELLANT COMP ANY SHOULD REVALIDATE THE CHEQUES. ACCORDINGLY, THE CHEQUES WERE REVALIDATED AND HANDED OVER TO BMC AND THAT IS WHY IT WAS REALIZED IN THE SUBSEQUENT YEAR AND BASED ON THIS THE LD. AO HAS LEVIED THE PENALTY OF RS.23,53,569/ - ON THE AMOUNT OF RS. 70,60,709/ - AS MENTIONED IN PAGE 3 OF THE PENALTY ORDER DTD. 28.09.2016. 3.4 AFTER GOING THROUGH THE ABOVE FACTS ON RECORD AND AFTER CONSIDERING THE ARGUMENTS OF THE AR OF THE APPELLANT, I AM OF THE CONSIDERED OPINION THAT THE CLAIM OF PROPERTY TAX IS NOT DONE DELIB ERATELY BY THE APPELLANT TO CLAIM ANY EXTRA BENEFIT. AS FAR AS THE COMPANY IS CONCERNED, THEY HAVE GIVEN THE CHEQUES TO THE BMC AUTHORITIES BUT THE BMC AUTHORITIES DID NOT PRESENT THE CHEQUES IN TIME. LATER ON, IT WAS REVALIDATED AND PRESENTED IN THE SUBSE QUENT F.Y. AND THEREFORE I AM OF THE CONSIDERED THAT THE APPELLANT COMPANY HAS NOT CONCEALED ANY PARTICULARS OF INCOME OR MADE ANY WRONG CLAIM AND THEREFORE I DIRECT THE AO TO DELETE THE PENALTY OF RS.23,53,569/ - . HENCE THIS GROUND OF APPEAL IS ALLOWED. 5 . ON APPRAISAL OF THE ABOVE SAID FINDING, WE NOTICED THAT THE ASSESSEE PAID THE TWO CHEQUES PAYABLE IN FAVOUR OF THE BMC AUTHOR ITIES. THE BMC AUTHORITY REALIZED ONE CHEQUE FOR THE PAYMENT OF RS.4,31,892/ - IN THE SUBSQUENT YEAR. THE DELAY HAPPENED ON ACCOUN T OF REVALIDATE OF THE CHEQUE BEING THE BMC AUTHORITY FAILED TO SUBMIT THE CHEQUE WELL IN TIME. NOTHING SEEMS TO BE CONCEALMENT OF INCOME AND FURNISHING THE INACCURATE PARTICULARS OF INCOME. THE CIT(A) HAS RIGHTLY DELETED THE PENALTY, THEREFORE, WE ARE OF THE VIEW ITA NO. 5208 /MUM/201 7 A.Y S . 2013 - 14 4 THAT THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, APPEAL OF THE REVENUE IS HEREBY ORDERED TO BE DISMISSED 6 . IN THE RESULT ALL THE APPEALS FILED BY THE REVENUE ARE HEREBY ORDERED TO BE DISMISSED . ORDER P RONOUNCED IN THE OPEN COURT ON 27. 02.2019 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 27. 02.2019 . V IJAY / 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// SR. PRIVATE SECRETARY ) , / ITAT, MUMBAI