Smt. Yasmin J.Saiyed, Vapi V. The ACIT.,Vapi Circle, Vapi

ITA 619/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60321 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Section: 143(3)

Judgement Text

ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AH MEDABAD (BEFORE SHRI D. K. TYAGI, J.M. AND SHRI ANIL CHATU RVEDI, A.M.) I.T.A. NO.619 /AHD/2012 (ASSESSMENT YEAR: 2006 - 07) SMT.YASMIN J. SAIYED, 192, SAURABH SOCIETY, G.I.D.C. BUNGALOW, NEAR GUNJAN CINEMA, VAPI-396191 (APPELLANT) VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, 3 RD FLOOR, SHIVAM COMMERCIAL COMPLEX, N.H. NO.8, VAPI. (RESPONDENT) PAN: AEQPS 7809P APPELLANT BY : SHRI M.K. PATEL. RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. ( )/ ORDER DATE OF HEARING : 7-5-2012 DATE OF PRONOUNCEMENT :11-5-2012 PER: SHRI ANIL CHATURVEDI,ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT (A), VALSAD DATED 30-11-2011 FOR THE ASSESSMENT YEA R 2006-07. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER:- ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 2 ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) OUGHT NOT TO HAVE CONFIRMED T HE ACTION OF THE LD. A.O. IMPOSING THE SAID PENALTY OF RS.83,000 /-. THE APPELLANT HAS NEITHER CONCEALED HER INCOME NOR SUBM ITTED ANY INACCURATE PARTICULARS OF INCOME. THE ACTION OF THE LD. CIT(A) IS CONTRARY TO THE FACTS OF THE CASE AND DESERVES TO B E DELETED. 3. THE ASSESSEE HAD FILED RETURN OF INCOME ON 20-3- 2007 DECLARING TOTAL INCOME AT RS.62,12,700/-. THE CASE WAS SELECT ED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S. 143(3) VIDE ORDER DATED 16-6-2008 DETERMINING TOTAL INCOME AT RS.64,57,670/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. OBSERVED THAT THE A SSESSEE DERIVED INCOME FROM INTEREST, FROM INVESTMENTS WITH BANK IN THE FORM OF FIXED DEPOSIT RECEIPTS AND SAVINGS ACCOUNT. THE A.O. NOTI CED ON PERUSAL OF TDS CERTIFICATES ATTACHED WITH THE RETURN THAT THE UTI BANK HAD CREDITED INTEREST OF RS.64,43,185/- IN THE ACCOUNT OF THE ASSESSEE WHEREAS THE ASSESSEE HAD OFFERED INTEREST INCOME OF RS.61,98,218/-. THUS, THE INTEREST OFFERED TO TAX WAS SHORT BY RS.2 ,44,967/-. BEFORE A.O. IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSE SSEE CAME TO KNOW ABOUT THE ACTUAL RECEIPT OF INTEREST ON RECEIP T OF TDS CERTIFICATE FROM THE BANK AND IMMEDIATELY ON KNOWING THIS FACT RS. 2,44,967/- WAS OFFERED FOR TAX IN A.Y. 2007-08. THE EXPLANATIO N OFFERED BY THE ASSESSEE WAS NOT ACCEPTED AND THE A.O. HELD THAT TH E ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME WITHIN T HE MEANING OF SECTION 271(1) (C) AND THEREFORE, THE ASSESSEES CA SE WAS COVERED BY CLAUSE (1) OF EXPLANATION 1 TO SECTION 271(1)(C). H E THEREFORE, HELD THAT ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 3 THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS O F INCOME AND LEVIED PENALTY OF RS.83,000/-. AGGRIEVED BY THE DEC ISION OF THE A.O. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT (A). 4. CIT (A) VIDE HIS ORDER DATED 30-11-2011 UPHELD T HE ORDER OF THE ASSESSING OFFICER. 5. AGGRIEVED WITH THE DECISION OF THE CIT (A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US THE LD A.R. SUBMITTED THAT THE ASSESSE E HAD CREDITED INTEREST RECEIVED FROM BANK WHICH WAS SHORT BY RS.2 ,44,967/-. ON RECEIPT OF TDS CERTIFICATE FROM THE BANK THE ASSESS EE CAME TO KNOW ABOUT THE SHORT CREDIT AND IMMEDIATELY ON NOTICING IT THE SAME WAS OFFERED FOR TAX IN THE ASSESSMENT YEAR 2007-08 MUCH BEFORE THE ISSUANCE OF NOTICE BY A.O. THE LD. A.R. FURTHER SUB MITTED THAT THE ASSESSEE HAS FURNISHED ALL THE PARTICULARS TO THE A .O. AND VOLUNTARILY OFFERED THE INCOME FOR TAX IN THE YEAR IN WHICH THE TDS CERTIFICATES WERE MADE AVAILABLE TO THE ASSESSEE. THE ASSESSEE H AD NOT SOUGHT TO EVADE ANY TAX AND THE FULL AMOUNT OF TAXES HAS BEEN PAID ON THE INTEREST CREDITED BY FILING THE RETURN FOR A.Y. 200 7-08. IT WAS FURTHER SUBMITTED THAT THE OMISSION TO CONSIDER THE AMOUNT WAS NOT DUE TO ANY MALAFIDE INTENTION ON THE PART OF THE ASSESSEE AND THERE WAS NO INTENTION TO CONCEAL THE INCOME AS IT HAS BEEN RECE IVED THROUGH BANKING CHANNELS. THE ASSESSEE FURTHER RELIED ON TH E DECISION OF ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 4 HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIAN CE PETROPRODUCTS LTD., (2010) 322 ITR 158 (SC). 7. ON THE OTHER HAND, THE LD. D.R. RELIED ON THE OR DER OF LOWER AUTHORITIES AND THE DECISION OF CIT VS. ZOOM COMMUN ICATION (P) LTD. (2010) 233 CTR (DEL.) 465. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE DOCUMENTS ON RECORDS. IT IS AN UNDISPUTED FACT THAT THE AMOUNT OF INTEREST OF RS.2,44,967/- WAS OFFERED FOR TAX IN AS SESSMENT YEAR 2007- 08 MUCH BEFORE THE A.O. HAD ISSUED THE NOTICE AND T HE TAX ON IT WAS ALSO PAID. THIS EXPLANATION HAS NOT BEEN FOUND TO B E FALSE BY A.O. IN THE CASE OF NUCHEM LTD. (2010) 6 ITR (TRIB) 429 (DE L.) THE CO-ORDINATE BENCH, AFTER CONSIDERING THE DECISION OF ZOOM COMMU NICATION (SUPRA) HAS HELD THAT IT IS A SETTLED LAW THAT SO LONG AS THE ASSESSEE HAS NOT CONCEALED ANY MATERIAL FACT OR THE FACTUAL INFORMATION GIVEN BY HIM HAS NOT BEEN FOUND TO BE INCORRECT, THE ASSE SSEE WILL NOT BE LIABLE TO IMPOSITION OF PENALTY U/S. 271(1)(C ) E VEN IF THE CLAIM MADE BY HIM IS UNSUSTAINABLE IN LAW, PROVIDED THAT HE EI THER SUBSTANTIATES THE EXPLANATION OFFERED BY HIM OR THE EXPLANATION O FFERED BY HIM, EVEN IF NOT SUBSTANTIATED, IS FOUND TO BE BONAFIDE. IN O THER WORDS IF THE EXPLANATION IS NEITHER SUBSTANTIATED NOR SHOWN TO B E BONAFIDE, EXPLANATION 1 TO SEC. 271(1)(C) WOULD COME INTO PLA Y AND THE ASSESSEE WILL BE LIABLE FOR PENALTY IN RESPECT OF T HE ADDITION OR DISALLOWANCES MADE BY THE A.O. IN ASSESSMENT. IN O UR CONSIDERED VIEW THE ASSESSEE HAS OFFERED AN EXPLANATION WHICH ON THE FACE OF IT ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 5 APPEARS TO BE BONAFIDE. NO PENALTY FOR CONCEALMENT OF INCOME CAN BE LEVIED BY MERELY DISBELIEVING AN EXPLANATION BY THE ASSESSEE. THERE HAS TO BE SOME POSSIBLE MATERIAL WHICH WOULD SHOW T HAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS. IN THE ABSENCE OF ANY SUCH FINDING IT IS NOT POSSIBLE TO HOLD THAT ASSESSEE HAD CONCEALED PARTIC ULARS OF INCOME BY FILING INACCURATE PARTICULARS. AS A RESULT PENAL TY CONFIRMED BY CIT (A) CANNOT BE UPHELD. IT IS ACCORDINGLY CANCELLED. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN OPEN COURT ON 11-5 - 2012. SD/- SD/- (D.K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) VALSAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.6 19/AHD/2012 ASSESSME NT YEAR 2006-07 . 6 1.DATE OF DICTATION 7 - 5 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 9 / 5 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..