WESTERN INDUSTRIAL COOPERATIVE ESTATE LIMITEDQQ, MUMBAI V. ASSISTANT COMMISSIONER OF iNCOME TAX 20(3), MUMBAI

ITA 6907/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4829 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CH ARUN KUMAR SINGH LD
• Assessee Lawyers: RAMAKRISHNA R LINGSUR LD
• Keywords: Wrong claim; TDS
• Section: 271(1)(c); 143(3)

Judgement Text

ITA 6907/MUM/2017 WESTERN INDUSTRIAL COOPERATIVE ESTATE LTD. ASSESSMENT YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI PAWAN SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.6907/MUM/2017 ( / ASSESSMENT YEAR: 2009-10) WESTERN INDUST RIAL COOPERATIVE ESTATE LIMITED PLOT NO. F11/12, MIDC (MAROL) CENTRAL ROAD, OPP. SEEPZ ANDHERI (EAST),MUMBAI-400 093 / VS. ASSISTANT COMMISSIONER OF INCOME TAX-20(3) ROOM NO.506, 5 TH FLOOR PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI-400 012 ./ ./PAN/GIR NO. AAAAW-0335-M ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SH. RAMAKRISHNA R. LINGSUR - LD. AR REVENUE BY : CH. ARUN KUMAR SINGH - LD.DR !' / DATE OF HEARING : 06/02/2019 !' / DATE OF PRONOUNCEMENT : 14/02/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-37, MUMBAI, [CIT(A)], APPEAL NO. CIT(A)-37/IT-271/ACIT-25(1)/14-15 DATED 25/09/2017 QUA CONFIRMATION OF PENALTY U/S 271(1)(C) FOR RS.5 LAC S. ITA 6907/MUM/2017 WESTERN INDUSTRIAL COOPERATIVE ESTATE LTD. ASSESSMENT YEAR: 2009-10 2 2.1 FACTS LEADING TO THE IMPOSITION OF PENALTY ARE THAT THE ASSESSEE BEING RESIDENT CO-OPERATIVE SOCIETY WAS ASSESSED FOR IMPUGNED AY U/S 143(3) ON 29/12/2011 BY LD. ASSISTANT COMMISSIONER OF INCOME TAX- 20(3), MUMBAI [AO] WHEREIN THE INCOME WAS DETERMINED AT RS.102.79 LACS AFTER CERTAIN ADDITIONS AS AGAINST RETURNED IN COME OF RS.97.29 LACS E-FILED BY THE ASSESSEE ON 29/09/2009. 2.2 DURING ASSESSMENT PROCEEDINGS, IT TRANSPIRED TH AT THE ASSESSEE EARNED INTEREST INCOME OF RS.5,01,970/- AGAINST FIXED DEPOSIT HELD WITH CERTAIN NATIONALIZED BANKS, WHICH WAS CLAIMED TO BE EXEMPT U/S 80P(2)(D). HOWEVER, SINCE THE INCOME WAS EARNED FRO M NATIONALIZED BANKS AND NOT FROM ANY OTHER COOPERATIVE SOCIETY , THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM THE AFORESAID DEDUCTION. RESULTAN TLY, THE DEDUCTION WAS DENIED AND THE INTEREST INCOME WAS ASSESSED UNDER T HE HEAD INCOME FROM OTHER SOURCES. ANOTHER ADDITION OF RS.47,907/- WAS MADE ON ACCOUNT OF MISMATCH IN RENTAL INCOME FIGURES REFLEC TED IN FORM 26AS VIS- -VIS FIGURES REFLECTED IN THE TDS CERTIFICATES. BO TH THE ADDITIONS WERE CONFIRMED BY FIRST APPELLATE AUTHORITY. 2.3 CONSEQUENTLY, PENALTY PROCEEDINGS WERE INITIATE D U/S 271(1)(C) AGAINST BOTH THE ADDITIONS FOR FILING OF INACCURATE PARTICULARS OF INCOME. ACCORDINGLY, THE ASSESSEE WAS SADDLED WITH IMPUGNED PENALTY OF RS.5 LACS VIDE ORDER DATED 13/06/2014. ALTHOUGH, THE ASS ESSEE DEFENDED HIS STAND VIDE SUBMISSIONS DATED 04/04/2014, HOWEVER, N OT CONVINCED, LD. AO IMPOSED A PENALTY OF RS.5 LACS. THE SAME, UPON C ONFIRMATION BY FIRST APPELLATE AUTHORITY, IS UNDER APPEAL BEFORE U S. 3. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE S UBMITTED THAT THE ASSESSEE WAS A COOPERATIVE SOCIETY AND WAS REGULAR IN FILING ITS INCOME ITA 6907/MUM/2017 WESTERN INDUSTRIAL COOPERATIVE ESTATE LTD. ASSESSMENT YEAR: 2009-10 3 TAX RETURNS & DISCHARGE ITS TAX LIABILITIES FROM TI ME TO TIME. THE ASSESSEE CLAIMED AS WELL AS ALLOWED DEDUCTION U/S 80P(2)(D) ON ACCOUNT OF INTEREST INCOME SINCE PAST SEVERAL YEARS. HOWEVER, IN THE IMPUGNED AY, THE DEDUCTION WAS CLAIMED AGAINST INTEREST INCOME I N THE SAME MANNER OVERLOOKING THE FACT THAT INTEREST ACCRUED FROM NATIONALIZED BANK AND NOT FROM ANY OTHER CO-OPERATIVE ENTITY WHICH WAS NOTHING MORE THAN AN INADVERTENT ERROR. THEREFORE, THE CONDUCT OF THE AS SESSEE WAS NOT CONTEMPTUOUS AND THERE WAS NO MALA-FIDE INTENTION ON THE PART OF THE ASSESSEE. RELIANCE HAS BEEN PLACED ON THE DECISION OF HONBLE APEX COURT RENDERED IN PWC PVT. LTD. VS CIT (348 ITR 306) , RELIANCE PETRO- PRODUCTS PVT. LTD. (322 ITR 58) & DECISION OF THIS TRIBUNAL RENDERED IN ITA NO.4887/MUM/2014- MRS. RICHA DUBEY. PER CONTRA, LD. DR SUBMITTED THAT MENS-REA WAS NOT REQUISITE ELEMENT BEFORE IMPOSITION OF A CIVIL LIABILITY. 4. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL ON RECORD. THE UNDISPUTED POSITIO N THAT EMERGES IS THAT THE ASSESSEE HAD BEEN CLAIMING AS WELL AS ALLOWED D EDUCTION U/S 80P(2)(D) SINCE PAST SEVERAL YEARS. SIMILAR DEDUCTI ON WAS CLAIMED DURING IMPUGNED AY AGAINST INTEREST INCOME OVERLOOKING THE FACT THAT THE SAME WAS NOT ELIGIBLE FOR THE SAME. HOWEVER, THE SAID FA CT AS WELL AS THE CONDUCT OF THE ASSESSEE DO NOT REVEAL ANY MALA-FIDE INTENTION ON THE PART OF THE ASSESSEE KEEPING IN VIEW THE FACT THAT IT WA S A CO-OPERATIVE SOCIETY. THE WRONG CLAIM, AT THE MOST, IN OUR OPINI ON, WAS NOTHING MORE THAN AN INADVERTENT ERROR. SIMILARLY, THE SECOND AD DITION AROSE OUT OF THE FACT THAT THERE WAS MISMATCH BETWEEN FORM 26AS AND TDS CERTIFICATE, HOWEVER, THE SAME WAS A MATTER OF RECONCILIATION ON LY. HENCE, THE ITA 6907/MUM/2017 WESTERN INDUSTRIAL COOPERATIVE ESTATE LTD. ASSESSMENT YEAR: 2009-10 4 OVERALL FACTUAL MATRIX DOES NOT INSPIRE CONFIDENCE IN US TO CONFIRM THE STAND OF LOWER AUTHORITIES. WE DRAW STRENGTH FROM T HE CITED JUDICIAL PRONOUNCEMENTS AS RELIED UPON BY LD. AR. RESULTANTL Y, BY DELETING THE PENALTY, WE ALLOW THE ASSESSEES APPEAL. 5. FINALLY, THE APPEAL STANDS ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2019. SD/- SD/- (PAWAN SINGH) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :14.02.2019 SR. PS THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT 3. $$% ( ) / THE CIT(A) 4. $$% / CIT CONCERNED 5. & ''() , $) , / DR, ITAT, MUMBAI 6. ' +, / GUARD FILE / BY ORDER, / % (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.