JALAJ J SAHAI, MUMBAI V. ACIT 16(1), MUMBAI

ITA 6415/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2303 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 07-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CAPT PRADEEP ARYA
• Assessee Lawyers: KESHAV B BHUJLE
• Keywords: Bonafide mistake
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI . , !' , # , $ BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO.6415/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) JALAJ J. SAHAI 131, ARUN CHAMBERS, TARDEO ROAD, MUMBAI - 400034 / VS. THE ASST. COMMISSIONER OF INCOME TAX 16(1) MUMBAI. % ./ & ./ PAN/GIR NO. : AEGPG2849M ( %' / APPELLANT ) .. ( ()%' / RESPONDENT ) ASSESSEE BY: SHRI. KESHAV B. BHUJLE DEPARTMENT BY: CAPT. PRADEEP ARYA * + / DATE OF HEARING: 23.11.2015 ,-. + /DATE OF PRONOUNCEMENT: 04.12.2015 / / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL AGAINST THE ORDER DATED 17.09.201 2 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-27, MUMBAI [HE REINAFTER REFERRED TO AS THE LEARNED CIT(A)] RELATING TO THE ASSESSMENT YE AR 2008-09. 2. THE ASSESSEE HAS CHALLENGED THE ABOVE MENTIONED ORDER ON THE FOLLOWING GROUND OF APPEAL MENTIONED BELOW: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE LEVY OF PENALTY OF RS.18,96,600/- UNDER SECTION 271 (1)(C) OF THE INCOME-TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT A CCEPTING THAT APPELLANT HAS VOLUNTARILY DISCLOSED THE INCOME AT THE TIME OF ASSESSMENT PROCEEDINGS. ITA NO.6415/MUM/2012 ASSESSMENT YEAR: 2008-09 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD C IT(A) FAILED TO ACCEPT THE INCOME DECLARED BY THE APPELLA NT, WHICH IS WITHOUT DETECTION BY THE DEPARTMENT AND THE TAX WAS ALSO PAID THEREON, ACCORDINGLY, APPELLANT CANNOT BE HELD GUIL TY OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID C IT(A) FAILED APPRECIATE THE BONAFIDE MISTAKE AND THE AO L EVIED THE PENALTY ONLY ON THE DISCLOSURE MADE BY THE APPELLAN T ONLY. IN BRIEF THE ASSESSEE HAS ASSERTED THAT ORDER OF LE ARNED CIT(A) CONFIRMING THE PENALTY OF RS.18,96,000/- U/S 271(1)(C) OF THE INCO ME TAX ACT, 1961( IN SHORT THE ACT) IS WRONG AND AGAINST THE LAW AND FACTS, THEREFORE, THE SAID ORDER IS LIABLE TO BE SET ASIDE. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE CASE FILES CA REFULLY. THE BASIS OF LEVY THE PENALTY IS THE ASSESSMENT ORDER DATED 28.12.2010 PA SSED BY THE ASSESSING OFFICER RELEVANT TO ASSESSMENT YEAR 2008-09. WHILE PASSING THE SAID ORDER THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) WAS ISSUED WHICH WAS ALSO RECEIVED BY THE ASSESSEE. SUBSEQUEN TLY, NOTICE U/S. 142(1) WAS ISSUED. THEREAFTER, IT WAS FOUND THAT THE ASSESSEE WAS HAVING THE FIXED DEPOSITS TO THE TUNE OF RS.10,00,000/- IN IDBI BANK WHICH WA S CONFIRMED BY THE BANK VIDE LETTER DATED 09.12.2010. IT WAS ALSO FOUND TH AT THE ASSESSEE WAS HAVING ANOTHER FIXED DEPOSITS OF RS. 10,00,000/- IN BANK O F BARODA WHICH WAS ALSO CONFIRMED BY THE BANK VIDE LETTER DATED 08.12.2010. THE ASSESSEE DID NOT DISCLOSE THE SOURCE AND ALSO THE SAID AMOUNT WAS NO T DISCLOSED IN THE RETURNS. THEREFORE, THE SAME WAS ADDED TO THE TAX. IT WAS A LSO FOUND THAT THE ASSESSEE DID NOT DISCLOSED THE BROKERAGE INCOME OF RS.30,56, 331/- AND INTEREST INCOME OF RS.5,08,706/- AND FURTHER INTEREST OF RS.14,761. THEREFORE, A SUM OF RS.55,79,798/- WAS ADDED TO THE ASSESSEES TOTAL IN COME WHICH WAS NOT DISCLOSED EARLIER AND ADDED TO THE INCOME OF THE AS SESSEE. THEREAFTER, THE PENALTY ORDER DATED 28.06.2011 WAS PASSED FOR THE LEVYING THE PENALTY TO THE ITA NO.6415/MUM/2012 ASSESSMENT YEAR: 2008-09 3 TUNE OF RS.18,96,600/-. SUBSEQUENTLY, THE APPEAL W AS PREFERRED BEFORE THE LEARNED CIT(A) WHO DISMISS THE APPEAL OF ASSESSEE. AGGRIEVED BY THE SAID ORDER THE PRESENT APPEAL FILED BEFORE TRIBUNAL 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES. THE LEARNED REPRESENTATIVE OF THE ASS ESSEE HAS ARGUED THAT THE ASSESSEE INADVERTENTLY FAILED TO DISCLOSED THE AMOU NT LIES WITH THE IDBI AS WELL AS LIES WITH THE BANK OF BARODA AND OTHER INCOME HA S VOLUNTARILY DISCLOSED THEREFORE NO PENALTY IS LEVIABLE IN VIEW OF THE LAW SETTLED IN CASE CITED AS (2009) 119 ITD 97 TITLED AS ADDITIONAL COMMISSIONER OF INC OME TAX VS. PREM CHAND GARG AND ORDER DATED 02.09.2015 PASSED BY ITAT, MUM BAI BENCH IN ITA NO. 6222&6223/M/13 TITLED AS HAFEEZ S. CONTRACTOR. L EARNED DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE ORDER IN QU ESTION. THE ABOVE ORDERS PERUSED BUT THE FACTS OF THE PRESENT CASE ARE NOT I DENTICAL TO THE ABOVE MENTIONED CASES. IN THE INSTANT CASE THE APPELLANT NOWHERE, MENTIONED AN AMOUNT OF RS.10,00,000/- DEPOSITED WITH THE IDBI BANK AND RS. 10,00,000/- DEPOSITED WITH BANK OF BARODA AND THE BANKS CONFIRMED THE SAID DEP OSITS BY THEIR LETTERS DATED 09.12.2010 AND 10.12.2010 RESPECTIVELY AND THE SAID TRANSACTIONS HAD NOT BEEN REFLECTED IN THE RETURN BY THE ASSESSEE. MOREOVER, BROKERAGE INCOME TO THE TUNE OF RS.30,56,331/- AND INTEREST INCOME TO THE TUNE O F RS.5,08,706/- AND INTEREST INCOME TO THE TUNE OF RS.14,761/- HAVE NOT BEEN REF LECTED IN HIS INCOME TAX RETURNS. THE ASSESSEE DID NOT DISCLOSED HIS INCOME TO THE TUNE OF RS.55,79,798/-. INADVERTENTLY AND MISTAKE ARE NOT THE PLAUSIBLE EXPLANATION. AT THE TIME OF SCRUTINY IT WAS FOUND THAT CERTAIN AMOU NT HAS NOT BEEN SHOWED IN THE RETURN. THERE IS NO PLAUSIBLE EXPLANATION ON RECORD AS TO WHY THESE AMOUNTS HAVE NOT SHOWN IN THE RETURNS OF THE RELEVANT ASSES SMENT YEARS. 5. IT IS CLEAR THAT THE ASSESSEE HAS CONCEALED PART ICULARS OF HIS INCOME AND ALSO FURNISHES THE INACCURATE PARTICULARS IN HIS RE TURN. THEREFORE, IN THE SAID ITA NO.6415/MUM/2012 ASSESSMENT YEAR: 2008-09 4 CIRCUMSTANCE WE NOWHERE, FOUND ANY GROUND TO INTERF ERE WITH THE ORDER OF LEARNED CIT(A) DATED 17.09.2012 IN QUESTION. 4. IN THE RESULT, THE PRESENT APPEAL OF THE ASSESSE E IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 4 TH DECEMBER, 2015 SD/- SD/- (D.KARUNAKAR RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER # /JUDICIAL MEMBER MUMBAI; 0* DATED : 4 TH DECEMBER, 2015 MP MP MP MP / COPY OF THE ORDER FORWARDED TO : 1. %' / THE APPELLANT 2. ()%' / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. 234 (# #* , , / DR, ITAT, MUMBAI 6. 45 6 / GUARD FILE. / BY ORDER, )2 (# //TRUE COPY// / ! (DY./ASSTT. REGISTRAR) !' # , / ITAT, MUMBAI