ANUJ RAJKUMAR KHANNA, MUMBAI V. ITO WD 26(2)(1), MUMBAI

ITA 7/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2726 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-01-2015
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Assessee Lawyers: G P MEHTA
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 7/M/2015 (ASSESSMENT YEAR: 2010 - 2011 ) ANUJ RAJKUMAR KHANNA, FLAT NO.002 , BLDG 11, LODHA ETERNIES GUFI MILL COMPOUND, ROAD NO.11, OPP. MAHAKALI CAVES ROAD, ANDHERI (E), MUMBAI 400 093. / VS. ITO - WARD 26(2)(1), MUMBAI. ./ PAN : AFGPK7228D ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI G.P. MEHTA / RESPONDENT BY : SHRI AJAY, DR / DATE OF HEARING : 29.06.2016 / DATE OF PRONOUNCEMENT : 21 .07.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 1.1.2015 IS AGAINST THE ORDER OF THE CIT (A) - 28, MUMBAI DATED 20.10.2014 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. IN THIS APPEAL, THE ONLY ISSUES RAISED BY THE ASSESSEE RELATES TO THE LEVY OF PENALTY OF RS. 4,86,209/ - U/S 271(1)(C) OF THE ACT. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE WAS AN EMPLOYEE WORKED FOR TWO DIFFERENT COMPANIES , IE (I) M/S. EFG WEALTH MANAGEMENT INDIA PVT LTD AND (II) M/S. AMBIT CAPITAL PVT LTD, DURING THE YEAR UNDER CONSIDERATION. AT THE TIME OF FILING OF THE RETURN OF INCOME, ASSESSEE DID NOT CONSIDER THE SALARY INCOME OF RS. 15,73,177/ - EARNED BY HIM FROM M/S. EFG WEALTH MANAGEMENT INDIA PVT LTD. DURING THE ASSESSMENT PROCEEDINGS, ASSESSEE REVISED THE COMPUTATION OF INCOME, COPY OF WHICH IS PLACED AT PAG E 4 OF THE PAPER BOOK AND CLAIMED TDS MADE BY THE SAID COMPANY AND PAID THE SELF - ASSESSMENT TAX OF RS. 67,543/ - . AO MADE ASSESSMENT ON THIS REVISED COMPUTATION OF INCOME AND LEVIED PENALTY FOR CONCEALMENT OF SALARY INCOME EARNED BY THE ASSESSEE FROM M/S . EFG 2 WEALTH MANAGEMENT INDIA PVT LTD. CIT (A) CONFIRMED THE PENALTY ORDER OF THE AO. AGGRIEVED WITH THE ABOVE, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, LD COUNSEL FOR THE ASSESSEE INFORMED THE ABOVE FACTS AND SUBMITTED THAT THERE IS A GENUINE OMISSION IN INCLUDING THE SAID SALARY INCOME EARNED FROM M/S. EFG WEALTH MANAGEMENT INDIA PVT LTD. HE FURTHER SUBMITTED THAT THE SAID COMPANY (EFGWMIPL) DEDUCTED THE TDS AND THE TDS CERTIFICATE WAS NOT GIVEN TO THE A SSESSEE. THE RETURN OF INCOME WAS PREPARED BY AN UNQUALIFIED TAX PRACTITIONER LED TO THE MISTAKE IN THE ENTRY OF THE RETURN OF INCOME ORIGINALLY FILED. THE ASSESSEE CORRECTED THE SAID MISTAKE AFTER OBTAINING THE DUPLICATE TDS CERTIFICATE FROM EFGWMIPL IN NOVEMBER, 2005 AND FILED THE REVISED COMPUTATION IMMEDIATELY AFTER PAYING THE SELF - ASSESSMENT TAX OF RS. 69,543/ - . REFERRING TO THE QUANTUM ISSUES, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO DISPUTE ON THE QUANTUM OF TOTAL INCOME OF THE ASSES SEE AS THE AO COMPLETED THE ASSESSMENT ON REVISED COMPUTATION OF INCOME. AT THE END, IT IS THE LD COUNSELS ARGUMENT THAT THE MISTAKE ON THESE FACTS CONSTITUTES A BONA FIDE MISTAKE SINCE THERE IS NO LOSS TO THE REVENUE IN VIEW OF THE TDS PROVISIONS SCRU PULOUSLY FOLLOWED BY THE EFGWMIPL. 5. AFTER HEARING BOTH THE PARTIES, I FIND MERITS IN THE ARGUMENT OF THE LD COUNSEL FOR THE ASSESSEE AND FIND IT IS A CASE OF TDS SUFFERED INCOME AND THE INFORMATION IS AVAILABLE WITH THE TDS WING OF THE DEPARTMENT. THEREFORE, NO CONCEALMENT I N T E N T I O N CAN BE ATT RIBUTED TO THE ASSESSEE. THEREFORE, IN MY OPINION, THE PENALTY LEVIED BY THE AO, SUSTAINED BY THE CIT (A) IS REQUIRED TO BE DELETED AND , I N M Y O P I N I O N , IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALL OWED 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUN CED IN THE OPEN COURT ON 2 1 S T JULY, 2016. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 21.7 .2016 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI