Sh. Keshav Misra, New Delhi V. ACIT, New Delhi

ITA 5903/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6360 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 14-02-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 18-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Assessee Lawyers: GAGAN KUMAR AMIT KAUSHIK

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI K.N. CHARRY, JUDICIAL MEMBER ITA NO. 5903 /DEL/2016 ASSTT. YEAR: 2012-13 SHRI KESHAV MISRA, VS ASSTT. COMMISSIONER OF INCOME TAX, 20, GOLF LINKS, CIRCLE-52(1), NEW DELHI. NEW DELHI-110003 (PAN: AAMPM0854C) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI GAGAN KUMAR, AMIT KAUSHIK, AD V. RESPONDENT BY: SHRI UMESH CHAND DUBEY, SR . DR DATE OF HEARING: 14.02.2017 DATE OF PRONOUNCEMENT: 14.03.2017 O R D E R PER G.D. AGRAWAL, VICE PRESIDENT THE ONLY GROUND RAISED IN THIS APPEAL RAISED BY TH E ASSESSEE IS AGAINST THE LEVY OF PENALTY OF RS. 10,47,973/- U/S 271(1)(C) O F THE INCOME TAX ACT, 1961. 2. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY THE LEARNED COUNSEL THAT FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED TH E RETURN DISCLOSING THE INCOME OF RS. 1,20,05,040/- WHICH WAS ACCEPTED IN TOTO IN THE ORDER PASSED U/S 143(3). HOWEVER, THERE WAS AN INADVERTENT MISTAKE WHILE FIL LING THE COLUMN OF CARRY ITA NO. 5903/DEL/2016 ASSESSMENT YEAR 2012-13 2 FORWARD LOSSES BY THE CLERICAL STAFF. THAT THERE W AS A CARRY FORWARD LOSS UNDER THE HEAD CAPITAL GAINS AMOUNTING TO RS. 50,87,429/- FOR ASSESSMENT YEAR 2011-12. HOWEVER, DUE TO CLERICAL ERROR, THE SIMILAR LOSS WA S ALSO MENTIONED IN ASSESSMENT YEAR 2010-11. THUS, AS AGAINST THE ACTUAL LONG TE RM CAPITAL LOSS OF RS. 50,87,429/- FOR ASSESSMENT YEAR 2011-12, WHICH WAS CLAIMED TWIC E, ONE IN ASSESSMENT YEAR 2010-11 AND ALSO IN 2011-12. HOWEVER, NO SET OFF O F SUCH LOSS IS CLAIMED BY THE ASSESSEE, EITHER IN THE YEAR UNDER APPEAL OR EVEN I N SUBSEQUENT YEAR. THUS, THERE WAS ONLY A SILLY MISTAKE INCURRED BY THE CLERICAL S TAFF. THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS AS THE INCOME RETURNED HAS BEEN ACCEPTED AFTER DUE SCRUTINY. IN SUPPORT OF THIS CONTENTION, HE RELIED UPON THE DECISION OF HONBLE APEX COURT IN T HE CASE OF PRICE WAREHOUSE COOPERS PVT. LTD. VS CIT (2012) 348 ITR 306 (S.C.). 3. LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. HE STATED THAT HAD THE CASE NOT BEEN SELECTED FOR S CRUTINY, THE ASSESSEE WOULD HAVE BEEN IN A POSITION TO CLAIM WRONG CARRY FORWARD OF LOSS WHICH COULD HAVE BEEN SET OFF IN THE SUBSEQUENT YEAR WHENEVER THERE WOULD HAV E BEEN LONG TERM CAPITAL GAIN. THUS, THERE WAS FURNISHING OF INACCURATE PARTICULAR S TO THE EXTENT OF WRONG DISCLOSURE OF CARRY FORWARD OF LONG TERM CAPITAL GA IN. ITA NO. 5903/DEL/2016 ASSESSMENT YEAR 2012-13 3 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSIDERING THE FACTS OF T HE CASE AND ARGUMENT OF BOTH THE SIDES, WE ARE OF THE OPINION THAT THE ISSUE UNDER C ONSIDERATION IS SQUARELY COVERED BY THE DECISION OF HONBLE APEX COURT IN THE CASE O F PRICE WATERHOUSE COOPERS PVT. LTD. VS CIT (SUPRA) WHEREIN THEIR LORDSHIPS OF APEX COURT HELD AS UNDER:- HELD, ALLOWING THE APPEAL, THAT THE FACTS OF THE C ASE WERE PECULIAR AND SOMEWHAT UNIQUE. NOTWITHSTANDING THAT THE ASSESSEE WAS A REPUTED FIRM AND HAD GREAT EXPERTISE AVAILABLE WITH IT, IT WAS P OSSIBLE THAT EVEN THE ASSESSEE COULD MAKE A SILLY MISTAKE. THE FACT TH AT THE TAX AUDIT REPORT WAS FILED ALONG WITH THE RETURN AND THAT IT UNEQUIV OCALLY STATED THAT THE PROVISION FOR PAYMENT WAS NOT ALLOWABLE UNDER SECTI ON 40A(7) OF THE ACT INDICATED THAT THE ASSESSEE MADE A COMPUTATION ERRO R IN ITS RETURN OF INCOME. THE CONTENTS OF THE TAX AUDIT REPORT SUGGE STED THAT THERE WAS NO QUESTION OF THE ASSESSEE CONCEALING ITS INCOME OR O F THE ASSESSEE FURNISHING ANY INACCURATE PARTICULARS. APART FROM THE FACT THAT THE ASSESSEE DID NOT NOTICE THE ERROR, IT WAS NOT EVEN NOTICED EVEN BY THE ASSESSING OFFICER WHO FRAMED THE ASSESSMENT ORDER. ALL THAT HAD HAPPENED WAS THAT THROUGH A BONA FIDE AND INADVERTE NT ERROR, THE ASSESSEE WHILE SUBMITTING ITS RETURN FAILED TO ADD THE PROVISION FOR GRATUITY TO ITS TOTAL INCOME. THE ASSESSEE SHOULD HAVE BEEN CAREFUL BUT THE ABSENCE OF DUE CARE, IN A CASE SUCH AS THE PRES ENT, DID NOT MEAN THAT THE ASSESSEE WAS GUILTY OF EITHER FURNISHING INACCU RATE PARTICULARS OR ATTEMPTING TO CONCEAL ITS INCOME. ON THE PECULIAR FACTS OF THIS CASE, THE IMPOSITION OF PENALTY ON THE ASSESSEE WAS NOT JUSTI FIED. 5. IN OUR OPINION, IN THE CASE OF THE ASSESSEE A LSO, IT WAS A SILLY MISTAKE OF SHOWING SIMILAR LONG TERM CAPITAL LOSS IN TWO YEARS I.E. ASSESSMENT YEAR 2010-11 AND 2011-12 INSTEAD OF ACTUAL YEAR OF LOSS OF ASSES SMENT YEAR 2011-12. WE, THEREFORE, FOLLOWING THE ABOVE DECISION OF THE HON BLE APEX COURT HOLD THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C). IN VIEW OF ABOVE, WE, RESPECTFULLY ITA NO. 5903/DEL/2016 ASSESSMENT YEAR 2012-13 4 FOLLOWING THE ABOVE DECISION IN THE CASE OF PRICE W ATERHOUSE COOPERS PVT. LTD., CANCEL THE LEVY OF PENALTY U/S 271(1)( C) OF THE AC T. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.3.201 7. SD/- SD/- (K.N. CHARRY) ( G.D. AGRAWAL) JUDICIAL MEMBER VICE PRESIDENT DATED: 14 TH MARCH, 2017 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. DR TRUE COPY BY ORDE R ASSTT. REGISTRA R