SUSHMA NITIN PATIL, MUMBAI V. ITO WARD 1(4), MUMBAI

ITA 6110/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3453 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Section: 271(1)(c); 143(3); 201; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) &SHRI PAWAN SINGH (J M) ITA NO. 6110/MUM/2018(AY : 2014-15) M/S SUSHMA NITIN PATIL C/O ADV. N.A. KULKARNI WADAL BUILDING, 1 ST FLOOR NEAR DNS BANK, MANPADA ROAD, DOMBIVLI (E), 421 201 PAN : CBEPP6515N VS ITO, WD.1(4), MOHAN PLAZA, 1 ST FLOOR WAYLENAGAR, KALYAN (W) APPELLANT RESPONDEDNT APPELLANT BY NONE RESPONDENT BY SHRI AKHTAR H ANSARI DATE OF HEARING 27-11-2019 DATE OF PRONOUNCEMENT 27-11-2019 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-2, THANE DATED 14 TH SEPTEMBER, 2018, WHICH, IN TURN ARISES AGAINST THE PENALTY ORDER U/S 271(1)(C) DATED 19 TH MAY, 2017 FOR AY 2014-15. 2. FACTS IN BRIEF AS EXTRACTED FROM THE ORDERS OF LOWE R AUTHORITIES ARE THAT DURING THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE AO NOTED THAT IN THE BANK ACCOUNT, THERE WERE TOTAL CREDIT OF RS.23,49,721/-, WHEREAS IN THE RETURN OF INCOME, AS SESSEE DECLARED NET RECEIPT OF RS.7,60,000/-. ON SHOW CAUSE NOTICE, TH E ASSESSEE STATED THAT THE CREDITS WERE OUT OF BUSINESS OF RCC WORK / CONS TRUCTION WORK 2 ITA NO. 6110/MUM/2018 SUSHMA NITIN PATIL CARRIED OUT BY ASSESSEE AND ACCORDINGLY DECLARED NE T PROFIT OF RS.4,07,270/- ON PRESUMPTIVE BASIS U/S 44AD. THE A O NOT ACCEPTED THE CONTENTION OF ASSESSEE AND THE AO DISALLOWED 25 % OF DIFFERENCE OF RECEIPT ( RS.23,49,721 RS.7,60,000 = RS.15,89,721 ) AND ADDED BACK TO THE INCOME OF ASSESSEE WHILE PASSING THE ASSESSM ENT ORDER U/S 143(3) ON 28-11-2016. THE AO ALSO INITIATED PENALT Y FOR CONCEALMENT OF INCOME. THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE UNDER SECTION 271(1)(C) RWS 274 OF THE ACT. THE ASSESSEE CONTESTED THE PENALTY PROCEEDINGS. THE AO RECORDED THAT THE ASSE SSEE FAILED TO FURNISH SUBMISSION AGAINST THE SHOW CAUSE NOTICE U/ S 274 R.W.S. 271(1)(C). THE AO LEVIED PENALTY @100% OF TAX SOUG HT TO BE EVADED, VIDE ORDER DATED 29-05-2017. ON FURTHER APPEAL BEF ORE CIT(A), THE LD.CIT(A) CONFIRMED THE PENALTY LEVIED BY AO. FURT HER AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL:- THE LD.CIT(A)-II HAS ERRED IN PARTLY CONFIRMING THE ORDERS OF AO THE PENALTY U/S 271(1(C) WHICH IS NOT CORRECT AND B AD BEFORE THE EYES OF LAW. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE, WHEN THE A PPEAL WAS TAKEN UP FOR HEARING DESPITE THE SERVICE OF NOTICE THROUGH R PAD. THEREFORE, WE ARE LEFT WITH NO OPTION EXCEPT TO HEAR THE LD. DR A ND DECIDE THE APPEAL 3 ITA NO. 6110/MUM/2018 SUSHMA NITIN PATIL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FOR THE REVENUE SUBMITS THAT ASSESSEE FAILED TO FURNISH SUF FICIENT CAUSE IN RESPONSE TO SHOW CAUSE NOTICE OF PENALTY PROCEEDING S. THE AO MADE DISALLOWANCE OF RECEIPTS, WHICH WERE FOUND TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT AND WAS NOT PROPERLY EXPLAINED BY THE ASSESSEE. THE LD. DR PRAYED FOR CONFIRMING THE PENALTY ORDER. 4. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE NOTED THAT THE AO WHILE PASSING THE ASSESSMENT ORDER MADE ADDITION ON ESTIMATE BASIS OF THE RECEIPT/ BANK DEPOSITS. WE HAVE FURTHER NOTED THAT THE AO INITIATED PENALTY FOR CONCEALMENT OF INCOME. WHILE PASSING T HE PENALTY ORDER, THE AO ALSO CONCLUDED THAT THE ASSESSEE CONCEALED H ER INCOME. HOWEVER, THE LD. CIT(A), WHILE CONFIRMING THE PENAL TY HELD THAT ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME AND INTENTIONALLY EVADED THE PAYMENT OF TAX. THERE IS NO DISPUTE THA T THE IMPUGNED PENALTY IS BASED ONLY ON ESTIMATE ADDITION. NO OTH ER ADDITION WHILE PASSING THE ASSESSMENT ORDER WAS MADE BY AO. WE AR E OF THE VIEW THAT IT IS SETTLED LEGAL POSITION THAT ON ESTIMATES ADDITION NO PENALTY UNDER SECTION 271(1)(C) IS LEVEABLE. THEREFORE, WE DO NOT FIND ANY 4 ITA NO. 6110/MUM/2018 SUSHMA NITIN PATIL JUSTIFICATION IN LEVYING THE PENALTY. HENCE, WE DI RECT THE AO TO DELETE THE ENTIRE PENALTY ORDER. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 27-11-2019. SD/- SD/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 27 TH NOVEMBER, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI