RUSHI BUILDERS AND DEVELOPERS, MUMBAI V. ACIT 15(3), MUMBAI

ITA 6684/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88549 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI . . , , BEFORE SHRI B. R. BASKARAN, AM AND SHRI SANJAY GAR G, JM ./ I.T.A. NO. 6684/MUM/2012 ( / ASSESSMENT YEAR: 2007-08) RUSHI BUILDERS AND DEVELOPERS HOTEL BAY VIEW, GORAI KHADI, L. T. ROAD, BORIVALI (W), MUMBAI-400 091 / VS. ASST. CIT-15(3), MUMBAI ! ./' ./PAN/GIR NO. AAHFR 4343 J ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !# & ' / APPELLANT BY : NONE $%!# & ' / RESPONDENT BY : SHRI LOVE KUMAR ( )* & +, / DATE OF HEARING : 04.03.2015 -./0 & +, / DATE OF PRONOUNCEMENT : 04.03.2015 1 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER OF THE LD. CIT(A)-26 DATED 13.08.2012. THE ASSESSEE HAS AGITAT ED THE SUSTAINING OF THE LEVY OF PENALTY AT RS.3,83,890/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE HAD CLAIMED DEDUCTION OF INTEREST EXPENSES OF RS.11,40,492/- WITHOUT DEDUCTING TDS. HE, THEREFORE , MADE A DISALLOWANCE OF THE SAID 2 ITA NO. 6684/MUM/2012 (A.Y. 2007-08) RUSHI BUILDERS AND DEVELOPERS VS. ASST. CIT EXPENDITURE AS PER THE PROVISION OF SECTION 40(A)(I A) OF THE ACT. THE PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT WERE ALSO INITIATED. IN TH E PENALTY PROCEEDINGS, THE ASSESSEE SUBMITTED BEFORE THE A.O. THAT THERE WAS ONLY A TEC HNICAL LAPSE ON THE PART OF THE ASSESSEE IN NON PRODUCTION OF PROOF OF FORMS NO. 15G, WHICH WERE MISPLACED AND NOT TRACEABLE. THE ASSESSEE ALSO SUBMITTED THAT CERTAIN PAYMENTS O F INTEREST WERE MADE TO HUFS AND THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT THE PAYMENTS OF INTEREST TO HUF DID NOT CALL FOR ANY DEDUCTION OF TAX AT SOURCE. THE A.O., HOWEV ER, DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAD FURN ISHED WRONG PARTICULARS OF INCOME AND THEREBY HAD CONCEALED ITS INCOME. HE, THEREFORE, LE VIED THE IMPUGNED PENALTY U/S.271(1)(C) OF THE ACT. 3. IN THE FIRST APPEAL, THE LD. CIT(A) CONFIRMED TH E PENALTY SO LEVIED BY THE A.O. THE ASSESSEE IS THUS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. IN THIS CASE, THE PENALTY HAS BEEN LEVIED FOR DISALLOW ANCE OF EXPENDITURE U/S.40(A)(IA) OF THE ACT. IT IS NOT A CASE OF FURNISHING OF INACCURATE P ARTICULARS OF INCOME OR CONCEALMENT OF INCOME. THE FAILURE TO DEDUCT THE TDS ON THE PART O F THE ASSESSEE HAS RESULTED IN DISALLOWANCE OF EXPENDITURE. THE ASSESSEE HAD NOT F URNISHED ANY INACCURATE PARTICULARS OF INCOME OR EXPENDITURE. THE ASSESSEE HAS ALREADY FAC ED THE CONSEQUENCES BY WAY OF DISALLOWANCE OF EXPENDITURE FOR NON-DEDUCTION OF TD S AS PER THE PROVISIONS OF SECTION 194C OF THE ACT. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAD NOT INCURRED THE EXPENDITURE CLAIMED OR THAT THE CLAIM OF EXPENDITUR E WAS BOGUS OR INCORRECT. THE DISALLOWANCE OF EXPENDITURE WAS ATTRACTED DUE TO NO N-DEDUCTION OF TDS AND IT CANNOT BE SAID TO BE A CASE OF CONCEALMENT OF INCOME OR FURNI SHING OF INACCURATE PARTICULARS OF INCOME. THE LEVY OF PENALTY U/S.271(1)(C) OF THE AC T IS NOT ATTRACTED IN THIS CASE AND THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 3 ITA NO. 6684/MUM/2012 (A.Y. 2007-08) RUSHI BUILDERS AND DEVELOPERS VS. ASST. CIT 5. IN THE RESULT, THE ASSESSEES APPEAL IS HEREBY A LLOWED. 20+3 42+ & ) 5 + & + 67 ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 4, 2015 SD/- SD/- (B. R. BASKARAN) (SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( * MUMBAI; 8 DATED : 04.03.2015 ). ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( 9+ ( ) / THE CIT(A) 4. ( 9+ / CIT - CONCERNED 5. <) $+ =4 , , =4 0 , ( * / DR, ITAT, MUMBAI 6. >* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ( * / ITAT, MUMBAI