Smt.Neena verma, Dhar V. ITO, Dhar

ITA 689/Ind/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2031 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: S S DESH
• Section: 271(1)(c); 148

Judgement Text

SMT. NEENA VERMA ITA NO.689/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.689/IND/2018 ASSESSMENT YEAR 2009-2010 REVENUE BY S HRI R.P. MOURYA , SR.DR ASSESSEE BY SHRI S.S. DESHPANDE,CA DATE OF HEARING 2 6 .0 6 .2019 DATE OF PRONOUNCEMENT 27 . 0 6 .2019 O R D E R PER MANISH BORAD, AM. THIS APPEAL IS FILED AT THE INSTANCE OF THE ASSESSE E PERTAINING TO ASSESSMENT YEAR 2009-10 AND IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-I (IN SHORT CIT(A)), INDORE DATED 01 .06.2018 WHICH IS ARISING OUT OF THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT 19 61(IN SHORT THE ACT) DATED 30.03.2016 FRAMED BY ITO, DHAR. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALA RY AND HOUSE PROPERTY. INCOME AT RS.2,83,000/- DECLARED IN THE RETURN OF I NCOME FILED ON 7.08.2009. CASE OF THE ASSESSEE WAS REOPENED BY ISSUANCE OF NO TICE U/S 148 OF THE ACT FOR THE INCOME RECEIVED IN THE FORM OF ELECTORAL FUND W HICH ESCAPED THE SMT. NEENA VERMA, F-2, OFFICERS COLONY, DHAR VS. INCOME TAX OFFICER , DHAR ( APPELLANT ) (RESPONDENT ) PAN NO. A DZ PV 5270F SMT. NEENA VERMA ITA NO.689/IND/2018 2 ASSESSMENT. DURING THE COURSE OF ASSESSMENT PROCEE DINGS ASSESSEE AGREED TO INCLUDE THE SAID AMOUNT AS HER INCOME. IT WAS SUBM ITTED THAT THE ASSESSEE WAS IN GENUINE BELIEF THAT THE AMOUNT RECEIVED FROM GENERAL ELECTORAL TRUST IS NOT TAXABLE AND THE AMOUNT IS FOR SPENDING IN THE E LECTIONS. TOTAL AMOUNT WAS ALREADY SPENT FOR THE PURPOSE OF ELECTIONS. HOWEVER , LD. A.O INITIATED THE PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR CONCEALMEN T OF INCOME AND LEVIED PENALTY AT RS.50,000/- U/S 271(1)(C) OF THE ACT. ASSESSEE APPEAL BEFORE THE LD. CIT(A) DID NOT BRING ANY RELIEF. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR DELET ING THE PENALTY BY SUBMITTING THAT THE ASSESSEE WAS OF GENUINE BELIEF THAT THE AMOUNT OF RS.2,00,000/- RECEIVED FROM GENERAL ELECTORAL TRUST WAS EXEMPT FROM TAX AND THIS AMOUNT HAS ALREADY BEEN SPENT AND NOTHING IS L EFT WITH THE ASSESSEE. LD. COUNSEL ALSO SUBMITTED THAT THE IMPUGNED NOTICE ISS UED U/S 271(1)(C) R.W.S. 148 OF THE ACT SUFFERS FROM TECHNICAL ERROR AS NO S PECIFIC CHARGE HAS BEEN LEVELED AGAINST THE ASSESSEE IN THE NOTICE ISSUED. 4. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEM ENTLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE SOLE GRIEVANCE OF THE ASSESSEE IS AGAINST T HE FINDING OF LD. CIT(A) CONFIRMING THE PENALTY OF RS.50,000/- LEVIED U/S 27 1(1)(C) OF THE ACT. ASSESSEE IS A MEMBER OF LEGISLATIVE ASSEMBLY. IN ORDER TO CO NTEST THE ELECTIONS SHE RECEIVED RS.2,00,000/- FROM GENERAL ELECTORAL TRUST , MUMBAI WHICH WAS USED SMT. NEENA VERMA ITA NO.689/IND/2018 3 BY HER IN INCURRING EXPENSES TOWARDS THE ELECTIONS BUT SHE DID NOT INCLUDE THE SAME IN HER INCOME UNDER A BELIEF THAT THE SAID AMO UNT IS NOT TAXABLE SINCE IT WAS ALREADY BEEN SPENT DURING THE ELECTION PROCESS. HOWEVER DURING THE COURSE OF ASSESSMENT PROCEEDINGS INITIATED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT AND THE ASSESSEE AGREED TO INCLUDE THE SAID AMOUNT AS INCOME. NOW WHETHER THE LD. A.O WAS JUSTIFIED IN LEVING PENALTY U/S 271 (1)(C) OF THE ACT ON THE AMOUNT RECEIVED FROM GENERAL ELECTORTAL TRUST AT RS . 2,00,000/-. 6. FROM PERUSAL OF THE NOTICE ISSUED U/S 274 R.W.S. 271(1)(C) OF THE ACT PLACED AT PAGE-6 OF THE PAPER BOOK DATED 26.6.2019 WE FIND THAT BOTH THE CHARGES I.E. CONCEALMENT OF PARTICULARS OF INCOME A S WELL AS FURNISHING INCORRECT PARTICULARS OF INCOME ARE MENTIONED. LD. A.O HAS FAILED TO LEVEL SPECIFIC CHARGE AGAINST THE ASSESSEE AS TO WHETHER SHE HAS CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. IN CASE OF SUCH FAILURE THE IMPUGNED NOTICE ISSUED U/S 274 R.W .S. U/S 271(1)(C) OF THE ACT SUFFERS FROM A TECHNICAL DEFECT AND AS HELD BY HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PCIT VS KULWANT SINGH BHATIA I TA NO.9 OF 2018 DATED 9.5.2018 SUCH PROCEEDINGS INITIATED BY ISSUANCE OF DEFECTIVE NOTICE U/S 274 R.W.S. 271(1)(C) ARE LIABLE TO BE QUASHED. WE ACCO RDINGLY ALLOW THE LEGAL ISSUE RAISED BY THE ASSESSEE AND DELETE THE PENALTY OF RS .50,000/- LEVIED U/S 271(1)(C) OF THE ACT. 7. SINCE WE HAVE ALREADY QUASHED THE PENALTY OF RS.50,000/- LEVIED U/S 271(1)(C) ON LEGAL GROUND, ADJUDICATION OF ISSUE ON MERITS BECOMES MERELY ACADEMIC AND THUS INFRUCTUOUS. SMT. NEENA VERMA ITA NO.689/IND/2018 4 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 27 TH JUNE, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE