ANITA V. RAO, MUMBAI V. ITO 26(2)(1), MUMBAI

ITA 5461/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1811 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-02-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 06-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 5461/MUM/2010 (ASSESSMENT YEAR: 2004-05) SMT. ANITA V. RAO INCOME TAX OFFICER - 26(2)(1) B-10, OM PARSHVANATH CHS LTD. SMT. K.G. MITTAL AAYU RVEDI SAI BABA NAGAR, BORIVALI (W) VS. HOSPITAL BLDG, 6TH FLOOR, MUMBAI 400092 CHARNI ROAD (W), MUMBAI 400002 PAN - AACPR 4641 Q APPELLANT RESPONDENT APPELLANT BY: RAJKUMAR SINGH RESPONDENT BY: MANOJ KUMAR DATE OF HEARING: 05.02.2013 DATE OF PRONOUNCEMENT: 05.02.2013 O R D E R PER D. MANMOHAN, V.P. THIS IS AN APPEAL FILED AT THE INSTANCE OF THE ASSE SSEE, WHO IS AN EMPLOYEE OF THE BHARAT PETROLEUM CORPORATION LTD. 2. PENALTY OF ` 9,694/- LEVIED BY THE AO UNDER SECTION 271(1)(C) HA VING BEEN CONFIRMED BY THE CIT(A), THE ASSESSEE IS IN AP PEAL BEFORE US. 3. THE CASE OF THE REVENUE IS THAT THE ASSESSEE HAS NO T SHOWN RECEIPT OF LEASE RENT AND MAINTENANCE CHARGES OF ` 53,700/- AND ` 12,997/- RESPECTIVELY IN THE RETURN OF INCOME FILED BY HER AND HENCE IT W AS A CASE OF CONCEALMENT OF INCOME FOR WHICH PENALTY IS LEVIED. 4. AT THE OUTSET IT MAY BE NOTICED THAT THERE IS A DEL AY OF ONE DAY IN FILING THE APPEAL FOR WHICH THE ASSESSEE HAS FILED VALID E XPLANATION AND HENCE WE CONDONE THE DELAY AND PROCEED TO DISPOSE OF THE APP EAL ON MERITS. 5. THE LEARNED COUNSEL PLACED BEFORE US A PAPER BOOK C ONSISTING OF 23 PAGES AND ADVERTED OUR ATTENTION TO THE FOLLOWING O RDERS PASSED BY THE ITAT MUMBAI BENCHES: - ITA NO. 5461/MUM/2010 SMT. ANITA V. RAO 2 1. ITA NO. 2440/MUM/2010 DATED 11.02.2011 2. ITA NO. 5989 & 5990/MUM/2009 DATED 16.07.2010 3. ITA NO. 5986, 5987 & 5988/MUM/2009 DATED 30.06.2010 4. ITA NO. 5991, 5992 & 5993/MUM/2009 DATED 16.07.2010 IT WAS CONTENDED THAT ON IDENTICAL CIRCUMSTANCES PE NALTY LEVIED BY THE AO WAS CANCELLED BY THE TRIBUNAL. HE ALSO ADVERTED OUR ATTENTION TO PAGE 4 OF THE PAPER BOOK TO SUBMIT THAT THE ASSESSEE HAS FURN ISHED VALID EXPLANATION AND THE FACTS BEING IDENTICAL IT IS NOT A FIT CASE FOR LEVY OF PENALTY. 6. ON THE OTHER HAND, THE LEARNED D.R. RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIES. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THERE IS NO DISPUTE WITH REGARD TO THE FACT UAL MATRIX OF THE CASE. REIMBURSEMENT OF MAINTENANCE CHARGES RECEIVED WAS N OT OFFERED TO TAX ON THE ADVICE OF THE TAX CONSULTANT UNDER THE BONAFIDE BELIEF THAT THE SAID RECEIPT BEING REIMBURSEMENT OF ACTUAL EXPENDITURE I S NOT LIABLE TO TAX. UNDER IDENTICAL CIRCUMSTANCES THE ITAT MUMBAI BENCHES HAV E CONSISTENTLY TAKEN A VIEW THAT PENALTY IS NOT IMPOSABLE SINCE THE EXPL ANATION IS REASONABLE. CONSISTENT WITH THE VIEW TAKEN IN THE AFOREMENTIONE D DECISIONS AND ALSO WITH REGARD TO THE SMALLNESS OF THE PENALTY IN DISP UTE, WE HOLD THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY. AS PRONOUNCED I N THE OPEN COURT WE SET ASIDE THE ORDERS PASSED BY THE TAX AUTHORITIES AND CANCEL THE PENALTY LEVIED BY THE AO. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2013. SD/- SD/- (RAJENDRA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 5 TH FEBRUARY, 2013 ITA NO. 5461/MUM/2010 SMT. ANITA V. RAO 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 28, MUMBAI 4. THE CIT 26, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.