SWAPNA VIJAY PANDIT, MUMBAI V. ACIT-23(3), MUMBAI , MUMBAI

ITA 6159/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7913 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR MENON
• Keywords: TDS; Set aside; FORM 26AS
• Section: 271(1)(c); 143(3); 143(1); 274; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI S. RIFAUR RAHMAN (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO. 6159/MUM/2019 ASSESSMENT YEAR: 2010-11 MRS. SWAPNA VIJAY PANDIT, PLOT NO. 200, PANDIT HOUSE, 28 TH RD, TPS III, BANDRA WEST MUMBAI - 400050. VS. ACIT-23(3), PIRAMAL CHAMBER PAREL, MUMBAI-400012. PAN NO. AADPP 4289 M APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. VIJAY KUMAR MENON, DR DATE OF HEARING : 01/04/2021 DATE OF PRONOUNCEMENT : 21/06/2021 ORDER PER S. RIFAUR RAHMAN, A.M. THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI [IN SHORT CIT(A)] FOR THE ASSESSMENT YEAR 2010-11 DATED 19.11.2012 AND ARISES OUT OF ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE, ASSESSEE FILED HER RETURN OF INCOME ON 22.03.2011 DECLARING TOTAL INCOME OF RS.23,44,390/- . THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT A CT). SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICE U/S 143(2) WAS ISSUED AND SERVED MRS. SWAPNA VIJAY PANDIT ITA NO. 6159 /M/2019 2 ON THE ASSESSEE. IN RESPONSE, THE AR OF THE ASSESSE E ATTENDED AND SUBMITTED THE INFORMATION AS CALLED FOR. DURING THIS ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT INTEREST INCOME AS PER FORM 26AS AT RS.8,32,328/- AND ASSESSEE OFFE RED INTEREST AT RS.7,40,712/- . WHEN THE SAME WAS POINTED TO THE ASSESSEE, ASSESS EE ADMITTED THE ADDITIONAL INTEREST INCOME AND OFFERED THE SAME TO THE TAX. SU BSEQUENTLY, PENALTY PROCEEDINGS U/S 271(1)(C) WAS INITIATED FOR CONCEAL ING THE PARTICULARS OF INCOME. ACCORDINGLY, NOTICE U/S 274 R.W.S. 271 WAS ISSUED O N 19.11.2012 AND SERVED ON THE ASSESSEE. IN RESPONSE, ASSESSEE SUBMITTED THAT ASSESSEE DECLARED THE INCOME IN THE RETURN OF INCOME BASED ON FORM 16A GIVEN BY THE BANK OF BARODA DATED 08.03.2010 IN WHICH FD INTEREST WAS SHOWN AT RS.7,4 0,712/- AND TDS OF RS.75,362/-. HOWEVER, IN FORM 26AS IT WAS BROUGHT T O THE NOTICE OF THE ASSESSEE THAT BANK HAS DECLARED RS.8,32,328/- AND DEDUCTED T DS OF RS.84,553/-. THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT DECL ARE THE DIFFERENCE OF INTEREST IN THE RETURN OF INCOME BECAUSE THE INFORMATION PRO VIDED BY THE BANK WAS NOT CORRECT. THE ASSESSING OFFICER AFTER CONSIDERING TH E SUBMISSIONS OF THE ASSESSEE, REJECTED THE CONTENTIONS OF THE ASSESSEE AND OBSERV ED THAT ASSESSEE FILED HER RETURN OF INCOME ON 22.03.2011 WHEREAS THE RELEVANT INTERESTS WERE ADMITTEDLY AVAILABLE IN FORM 26AS AS EARLY AS 16.02.2011. FURT HER HE OBSERVED THAT THE BALANCE INTEREST WAS OFFERED TO TAX ONLY AFTER THE SAME WAS DISCOVERED IN ASSESSMENT PROCEEDINGS AND IT IS NOT OFFERED VOLUNT ARILY. THEREFORE, THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS O F HER INCOME. ACCORDINGLY, HE IMPOSED PENALTY. MRS. SWAPNA VIJAY PANDIT ITA NO. 6159 /M/2019 3 3. AGGRIEVED WITH THE ABOVE ORDER, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE, HE SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. AGGRIEVED WITH THE ABOVE ORDER, ASSESSEE IS IN A PPEAL BEFORE US RAISING FOLLOWING GROUNDS OF APPEAL READ AS UNDER : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS.28,310/- LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. REASONS GIVEN BY THE CIT(A) FOR CONFIRMING THE PENA LTY OF RS.28,310/- LEVIED BY AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961, ARE W RONG INSUFFICIENT AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 5. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THA T ASSESSEE HAS DECLARED THE FD INTEREST BASED ON THE FORM 16A GIVEN BY THE BANK . HOWEVER, IT IS BROUGHT TO THE ASSESSEES NOTICE DURING ASSESSMENT PROCEEDINGS THAT THE FD INTEREST DECLARED BY THE BANK IN FORM 26AS WAS MUCH MORE THA N THE FD INTEREST DECLARED BY THE ASSESSEE. HE SUBMITTED THAT ASSESSEE VOLUNTA RY AGREED TO DECLARE THE ABOVE ADDITIONAL INTEREST FOR TAX AND HE SUBMITTED THAT ASSESSEE NOT ONLY OMITTED THE INTEREST AMOUNT AS WELL AS ASSESSEE DID NOT TAK E TDS CREDIT IN HER RETURN OF INCOME. HE SUBMITTED THAT THIS IS A BONA FIDE MISTAKE MADE BY THE ASSESSEE AND ASSESSEE HAS NOT TAKEN UNDUE ADVANTAGE OF CLAIMING TAX CREDIT. HE SUBMITTED THAT THE CASE OF THE ASSESSEE WILL NOT FALL UNDER THE CA TEGORY OF CONCEALMENT OF INCOME. 6. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS PASSED BY THE LOWER AUTHORITIES. MRS. SWAPNA VIJAY PANDIT ITA NO. 6159 /M/2019 4 7. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT ASSESSEE HAS DECLARED FD INTEREST IN HE R RETURN OF INCOME BASED ON FORM 16 ISSUED BY THE BANK AND HOWEVER, DURING ASSE SSMENT PROCEEDINGS IT WAS BROUGHT TO HER NOTICE THAT THE BANK HAD DECLARE D ADDITIONAL FD INTEREST TO THE EXTENT OF RS.91,616/-. IT IS BROUGHT TO OUR NOT ICE THAT ASSESSEE OMITTED TO DECLARE FD INTEREST AS PER FORM 26AS AS WELL AS ASS ESSEE HAS NOT TAKEN THE RESPECTIVE TDS CREDITED BY THE BANK IN HER ACCOUNT. AFTER CONSIDERING THE ABOVE FACTS, WE AGREE WITH THE SUBMISSIONS OF THE LD. AR THAT THIS WILL FALL UNDER THE CATEGORY OF BONA FIDE MISTAKE AND NOTHING WAS BROUGHT ON RECORD TO SHOW T HAT ASSESSEE DELIBERATELY CONCEALED THE INTEREST INCOME . THEREFORE, WE DO NOT SEE ANY REASON TO SUSTAIN THE PENALTY LEVIED BY THE ASS ESSING OFFICER AND SUSTAINED BY LD. CIT(A). ACCORDINGLY, ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS A LLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/06/2021. SD/- SD/- (RAVISH SOOD) ( S. RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 21/06/2021 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT MRS. SWAPNA VIJAY PANDIT ITA NO. 6159 /M/2019 5 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSISTANT REGISTRAR) ITAT, MUMBAI