BALRAJ PRAKASHCAND BANSAL, MUMBAI V. ACIT 22(2), NAVI MUMBAI

ITA 7170/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5121 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7170/M/2017 ASSESSMENT YEAR: 2011-12 SHRI BALRAJ P. BANSAL, PROP. M/S. BLACKSMITH DEVELOPERS, C-3 RUNWAL PARK, SION TROMBAY ROAD, CHEMBUR, MUMBAI 400071 MAHARASHTRA PAN: AABPB0543N VS. THE DEPUTY COMMISSIONER OF INCOME TAX 22(2), 4 TH FLOOR, TOWER NO.6, VASHI RLY STN COMPLEX, VASHI, NAVI MUMBAI 400 703 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI SUNIL KUMAR AGARWAL, D.R. DATE OF HEARING : 15.01.2019 DATE OF PRONOUNCEMENT : 28.01.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 21.08.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2011-12. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE VAR IOUS GROUNDS OF APPEAL IS AGAINST THE ORDER OF LD. CIT(A ) UPHOLDING THE ORDER OF AO IN IMPOSING PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT TO THE TUNE OF RS.52,683/-. ITA NO.7170/M/2017 SHRI BALRAJ P. BANSAL 2 3. AT THE TIME OF HEARING, WE NOTICED THAT THERE IS A DELAY OF 38 DAYS IN FILING THE APPEAL. AFTER PERUSING THE A FFIDAVIT FILED BY THE ASSESSEE AND THE DOCUMENT OF THE LD. D.R., WE O BSERVE THAT THE DELAY OF 38 DAYS WAS ATTRIBUTABLE TO THE FACT T HAT WHEN THE ORDER WAS RECEIVED IT WAS FESTIVE SEASON OF DIWALI AND THE ASSESSEE REMAINED OUT OF STATION FOR A LONG PERIOD AND THEREFORE THE APPEAL COULD NOT BE FILED IN TIME. THE ASSESSE E ALSO STATED IN THE AFFIDAVIT THAT THE DELAY WAS NOT DUE TO NEGLIGE NCE BUT DUE TO BONAFIDE REASONS AND THEREFORE SHOULD BE CONDONED. AFTER CONSIDERING THE FACTS ON RECORDS AND THE NATURE OF ISSUE INVOLVED IN THE CASE, WE ARE INCLINED TO CONDONE THE DELAY. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APPEAL AND PROCE ED TO DISPOSE THE APPEAL AS MENTIONED BELOW. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSMENT UNDER SECTION 143(3) WAS FRAMED VIDE ORDER DATED 07.01.2014 DETER MINING THE TOTAL INCOME AT RS.44,89,140/- AS AGAINST THE RETUR N OF INCOME OF RS.43,18,647/- THE ONLY ADDITION MADE IN THE ASS ESSMENT ORDER IS CONSEQUENT TO THE CHANGE OF HEADS OF INCOM E FROM HOUSE PROPERTY TO INCOME FROM OTHER SOURCES. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED T HAT ASSESSEE HAS SHOWN INCOME FROM HOUSE PROPERTY OF RS.18,13,634/- RECEIVED FROM VARIOUS PARTIES WHEREA S AFTER PERUSING THE LEASE/RENTAL AGREEMENTS THE AO CAME TO THE CONCLUSION THAT THESE AGREEMENTS WERE ENTERED INTO FOR PROVIDING VARIOUS AMENITIES AND SERVICES AND THEREFORE THE SA ME HAS TO BE ASSESSED UNDER THE INCOME FROM OTHER SOURCES AND NO T FROM HOUSE PROPERTY. ITA NO.7170/M/2017 SHRI BALRAJ P. BANSAL 3 5. AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND VARIOUS CONTENTIONS RAISED BY THE ASSESSEE, THE AO RECALCUL ATED THE INCOME AS UNDER: INCOME FROM HOUSE PROPERTY - RS.14,14,127/- (AFTER ALLOWING THE DEDUCTION UNDER SECTION 24(1) O F THE ACT.) INCOME FROM OTHER SOURCES. - RS.5,70,000/- 6. THE LD. CIT(A) UPHELD THE ORDER OF AO BY OBSERV ING THAT ISSUE INVOLVED IN THE ASSESSEES CASE IS NEITHER DE BATABLE NOR CAN THERE BE TWO VIEWS POSSIBLE AS CLAIMED BY THE A SSESSEE AND EXPLANATION OFFERED BY THE ASSESSEE IN THIS REGARD HAS NOT BEEN SUBSTANTIATED AND SAME WAS NOT FOUND TO BE CORRECT AND BONAFIDE AND THEREFORE THE EXPLANATION 1 TO SECTION 271(1)(C) IS CLEARLY ATTRACTED. 7. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL ON RECORD AND OBSERVED THAT THE ONLY ISSUE WHICH HAS R ESULTED INTO ADDITION IN THE ASSESSMENT ORDER WAS DUE TO THE FAC T THAT ACCORDING TO THE AO THE ASSESSEE HAS RECEIVED SOME INCOME BY WAY OF PROVIDING MAINTENANCE AND OTHER FACILITIES I N THE LEASE/RENT AGREEMENT WHICH SHOULD HAVE BEEN ASSESSE D AS INCOME FROM OTHER SOURCES WHEREAS THE SAME WAS SHOW N BY THE ASSESSEE AS INCOME FROM HOUSE PROPERTY. IN OUR CON SIDERED VIEW NO PENALTY IS LEVIABLE UNDER SECTION 271(1)(C) OF T HE ACT IN CASE THERE IS A MERE CHANGE OF HEADS OF INCOME. THE CAS E OF THE ASSESSEE IS SUPPORTED BY THE DECISION OF THE HONBL E BOMBAY HIGH COURT IN THE CASE OF BENNET COLEMAN & CO. LTD ITA NO.2663 OF 2010 DATED 06.04.2010, HONBLE DELHI HI GH COURT IN THE CASE OF BHARTESH JAIN ITA NO.763/2006 DATED 13 .07.2007 ITA NO.7170/M/2017 SHRI BALRAJ P. BANSAL 4 WHEREIN THESE HONBLE COURTS HAVE HELD THAT NO PENA LTY IS LEVIABLE U/S 271(1)(C) OF THE ACT WHEN THERE IS A C HANGE OF HEADS OF INCOME. WE, THEREFORE, RESPECTFULLY FOLLOWING T HE RATIO LAID DOWN IN THE DECISIONS AS STATED ABOVE, SET ASIDE TH E ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28.01.2019. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 28.01.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.