PANDURANG M KOLI, PUNE V. ITO 26(2)(3), MUMBAI

ITA 5276/MUM/2010

• Counselvise Citation: 527619914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 25-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 5274 TO 5276/MUM/2010 (ASSESSMENT YEAR: 2002-03 TO 2004-05) SHRI PANDURANG M. KOLI INCOME TAX OFFICER - 26(2)(3 ) C/O. MR. D.Y. PANDIT, ADVOCATE MUMBAI 400002 1187/10, KRUPA, SHIVAJINAGAR VS. PUNE 411005 PAN - AAGPK 7755 A APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI SHANTAM BOSE DATE OF HEARING: 15.09.2011 DATE OF PRONOUNCEMENT: 28.09.2011 O R D E R PER B. RAMAKOTAIAH, A.M. THESE THREE APPEALS, FILED AT THE INSTANCE OF THE A SSESSEE, ARE DIRECTED AGAINST THE ORDERS DATED 23.09.2009 PASSED BY THE C IT(A)-XXVIII, MUMBAI AND THEY PERTAIN TO THE ASSESSMENT YEARS 2002-03, 2 003-04 AND 2004-05. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF A SSESSEE BUT AN APPLICATION VIDE LETTER DATED 14.09.2011 WAS FILED FOR ADJOURNMENT OF HEARING. THE BENCH REJECTED THE APPLICATION FOR ADJ OURNMENT AND DECIDED THE CASE EXPARTE APPELLANT. 3. THE ISSUE IN THESE CASES OF PENALTY IS THAT ASSESSE E FAILED TO INCLUDE THE LEASE RENT RECEIVED ALONG WITH MAINTENANCE CHAR GES ON THE HOUSE, WHICH WAS SELF LEASED TO THE COMPANY( BPCL). IT WAS THE S TAND OF THE ASSESSEE THAT THE AMOUNT WAS INCLUDED AS PERQUISITES BY THE COMPA NY BUT THE A.O. MADE SEPARATE ADDITION AND LEVIED PENALTY IN ALL THESE Y EARS. BEFORE THE CIT(A) IT WAS CONTENDED THAT IN ALL THE EMPLOYEES CASES THE COMPANY HAS PROVIDED HOUSE ON SELF LEASE BASIS AND THE LEASE RENT WAS CO NSIDERED AS PERQUISITES IN THE SALARY WHILE THE MAINTENANCE CHARGES ARE REIMBU RSED ON EXPENDITURE, WHICH CANNOT BE TAKEN AS INCOME. IT WAS THE SUBMISS ION THAT A RENT FREE ITA NO. 5274 TO 5276/MUM/2010 SHRI PANDURANG M. KOLI 2 ACCOMMODATION BY BPCL HAVING BEEN TREATED AS PERQUI SITES IN THE HANDS OF THE EMPLOYEE CANNOT AGAIN BE BROUGHT TO TAX AS INCO ME FROM HOUSE PROPERTY. IT IS ALSO THE SUBMISSION THAT THE A.O. H AS NOT EXCLUDED THE PERQUISITES AS THIS INCOME WAS INCLUDED IN THE SALA RY. JUST BECAUSE PART OF IT WAS SHIFTED TO HOUSE PROPERTY INCOME THERE CANNOT B E ANY PENALTY. THE CIT(A), HOWEVER, DID NOT AGREE AND CONFIRMED THE PE NALTY. 4. BEFORE US IT WAS THE SUBMISSION THAT IN SIMILAR CAS ES, ITAT MUMBAI BENCH HAS CONSISTENTLY TAKEN A STAND THAT PENALTY I S NOT LIVEABLE UNDER SECTION 271(1)(C) OF THE I.T. ACT UNDER THE PECULIA R CIRCUMSTANCE IN WHICH EMPLOYEES OF BHARAT PETROLEUM CORPORATION LTD. THE CASES ARE: - 1. MR. MANGHAL GAONKAR & OTHERS. VS. ITO ITA. NO. 5 879/MUM/2009. A BENCH 2. SHRI RAVINDRA L. SATHE VS. ITO ITA.NO. 2828/MUM/200 8 D BENCH 3. SMT. VERONICA J.CORREIA VS. ITO ITA.NO. 5986, 5987 & 5988/MUM/2009 4. SHRI ADRIN J.AUGUSTINE VS. ITO ITA. NO. 1922 TO 192 4/MUM/2010 A BENCH 5. MR. KESHAVAN P. PILLAY VS. ITO ITA. NO. 1595/MUM/20 10 A BENCH 6. MR. VIKRAM BHIVAJI ZUMBRE VS. ITO ITA. NO. 2368/MUM /2010 F BENCH 7. WINSTON I. RODRIGUES VS. ITO ITA. NO. 1606. 1572 AN D 1574/MUM/2010 G BENCH 8. SHALESH R.PRAJAPATI VS. ITO ITA. NO. 1708/MUM/2010 D BENCH. 9. MR. DILIP N. PHATAK ITA. NO. 1931/MUM/2010 AND MR. RAJESH V. GAD ITA. NO. 1932/MUM/2010 D BENCH. 10. MR. CHANDRAKANT K. MAHADKAR ITA. NO. 1918 TO 1921/M UM/2010 C BENCH 11. SHRI RAJENDRA PRADHAN ITA NO.2933, 2934 & 2935/MUM/ 2010 D BENCH 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORD ERS PASSED BY THE TAX AUTHORITIES. 5. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE R ECORD. AS REGARDS THE LEVY OF PENALTY, IT IS NOTICED THAT UNDER IDENT ICAL CIRCUMSTANCES THE ITAT, MUMBAI BENCHES HAVE CONSISTENTLY TAKEN A STAND THAT UNDER THE CIRCUMSTANCES IT CANNOT BE SAID TO BE A CASE OF WIL FUL CONCEALMENT OF INCOME AND ACCORDINGLY, CANCELLED THE PENALTY LEVIED BY TH E ASSESSING OFFICER. ITA NO. 5274 TO 5276/MUM/2010 SHRI PANDURANG M. KOLI 3 CONSISTENT WITH THE VIEW TAKEN THEREIN, WE HOLD THA T IT IS NOT A FIT CASE FOR LEVY OF PENALTY. THEREFORE, WE CANCEL THE PENALTY O F ` 10,135/- (A.Y. 2002-03), ` 48,223/- (A.Y. 2003-04) AND ` 15,694/- (A.Y. 2004-05). 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2011. SD/- SD/- (B.R. MITTAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 28 TH SEPTEMBER 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXVIII, MUMBAI 4. THE CIT XXVI, MUMBAI CITY 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.