M/s. Om Prakash & Sons (HUF), New Delhi V. ACIT, Faridabad

ITA 5648/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97859 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 24-09-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Assessee Lawyers: SOMIL AGARWAL
• Keywords: Bonafide mistake
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 5648/ DEL/201 4 (ASSESSMENT YEAR - 200 2 - 03 ) OM PRAKASH & SONS (HUF), C/O - RRA TAXINDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049. PAN - AAAHQ0723L (APPELLANT ) VS ACIT, CENTRAL CIRCLE, FARIDABAD (RESPONDENT ) APPELLANT BY SH.SOMIL AGARWAL, ADV RESPONDENT BY SH.VED PRAKASH MISHRA, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 09.06.2014 OF CIT(A) - V, GURGAON PERTAINING TO 2002 - 03 ASSESSMENT YEAR ON THE GROUND OF UPHOLDING PENALTY U/S 271(1)(C) OF RS.11,095/ - . THE RELEVANT FACTS AS E MANATING FROM THE RECORD ARE THAT THE ASSESSEE DECLARED AN INCOME OF RS.50,140/ - BY WAY OF FILING ITS RETURN WHICH WAS ACCEPTED BY AN ORDER U/S 143(1) ON 14.02.2005. SUBSEQUENTLY IT WAS NOTICED THAT THE ASSESSEE HAD RECEIVED INTERESTS OF RS.54,374/ - ON IT S DEPOSIT FROM BABURAM OM PRAKASH WHICH HA D NOT BEEN SHOWN IN THE RETURN , ACCORDINGLY PROCEEDINGS U/S 148 WAS INITIATED WHEREIN THE SAID AMOUNT WAS ACCEPTED AS THE INCOME OF THE ASSESSEE RESULTING IN THE ASSESSMENT BEING CONCLUDED AT AN INCOME OF RS.1,14,210/ - . A S A RESULT OF THIS ADDITION PENALTY PROCEEDINGS U/S 271(1)(C) WERE INITIATED THE LD. AR R ELIED UPON THE LETTER DATED 19.10.2007 MADE IN THE ASSESSMENT PROCEEDINGS STATED THAT DUE TO OVER SIGHT THE INTERESTS RECEIVED WAS NOT SHOWN AND AS SO ON AS THIS FACT WAS NOTICED THE ASSESSEE HAS FILED ITS RETURN ACCEPTING THE SAME AS ASSESSEE S INCOME. IN THE PENALTY PROCEEDINGS IT WAS ALSO SUBMITTED THAT THE ASSESSEE DID NOT MAINTAIN ANY BOOKS OF ACCOUNTS AND SINCE THE ACCOUNTS OF BABURAM OM PRAKASH H A D NOT BEEN RECEIVED THE MIS TAKE HAD OCCURRED . NOT CONVINCED WITH THE DATE OF HEARING 24.09 .2015 DATE OF PRONOUNCEMENT 16 .11 .2015 I.T.A .NO. - 5648 / DEL/201 4 PAGE 2 OF 2 EXPLANATION OFFERED, PENALTY OF RS.11,095/ - WAS LEVIED. THE SAID EXPLANATION WAS REITERATING BEFORE THE CIT(A). APART FROM THE ABOVE, IT WAS ALSO STATED THAT INFACT BEFORE THE ISSUANC E OF NOTICE U/S 148, THE AO PROPOSED TO RECTIFY THE APPARENT ERROR AND THE ASSESSEE HAS ACCEPTED IT AS A BONAFIDE MISTAKE. IN THE ABOVE BACKGROUND, THE LD.AR RELIED UPON THE CIT VS RAJIV GARG & ORS. [2009] 313 ITR 0256 [HIGH COURT OF PUNJAB & HARYANA] AND SUBMITTED THAT THE AMOUNT WAS NOT DISCLOSED ON ACCOUNT OF INADVERTENT OMISSION ACCORDINGLY IT WAS SUBMITTED THAT THE PENALTY MAY BE QUASHED. 2. LD. SR. DR ON THE OTHER HAND RELYING UPON THE ORDERS OF THE AUTHORITIES BELOW SUBMITTED HAD THE MISTAKE DID NOT BEEN DETRACTED T HE ASSESSEE WOULD NOT HAVE DISCLOSED THE INCOME THUS PENALTY WAS RIGHTLY LEVIED AND UPHELD. 3 . HAVING HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES ON ACCOUNT OF THE INADVERTENT MISTAKE FOR NOT INCLUDING THE SAID INCOME THE EXPLANATION OF THE ASSESSEE DESERVES TO BE ACCEPTED. THE MATERIAL FAC T THAT THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNTS AND THE FACT THAT THE STATEMENT OF ACCOUNT FROM BABURAM OM PRAKASH HAD NOT BEEN RECEIVED TILL THE FINALIZATION OF RETURN HAS NOT BEEN DISPUTED. THIS FACT HAS BEEN C ONSISTENTLY ARGUED BEFORE THE AO AND THE CIT(A) AND HAVE NOT BEEN REBUTTED. ACCORDINGLY ACCEPTING THE EXPLANATION OF THE ASSESSEE A S A BONAFIDE MISTAKE THE PENALTY IS DIRECTED TO BE QUASHED AND THE IMPUTED ORDER IS SET ASIDE. THE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF I N THE OPEN COURT. 4 . IN THE RESULT, THE APPE AL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 TH OF NOVEMBER, 2015. SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 16 /11 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI