SHAHEEN M MUJAWAR, MUMBAI V. ITO 26(3)(2), MUMBAI

ITA 742/MUM/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6557 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Keywords: Sale consideration of property below Jantri Value; Revised return; Capital Gains
• Section: 50C; 143(2); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI , JUDICIAL MEMBER ITA NO. 742/MUM/2017 : A.Y : 2009 - 10 SHAHEEN M. MUJAWAR PRABHATWADI KURLA PIPELINE, BEHIND SAGAR HEIGHTS, SAKINAKA, MUMBAI 400 072. PAN : AA HPM1303K (APPELLANT) VS. ITO - 26(3)(2) , MUMBAI (RESPONDENT) ASSESSEE BY : SHRI JITENDRA JAIN REVENUE BY : MS. BHARTI SINGH DATE OF HEARING : 16 /1 2 /2019 DATE OF PRONOUNCEMENT : 06 / 0 2/20 20 O R D E R PER SHAMIM YAHYA , ACCOUNTANT MEMBER T H I S APPEAL BY THE ASSESSEE IS DIRECT ED AGAINST ORDER OF LEARNED CIT(A) DATED 21.10.2016 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. T HE ISSUE RAISED IS THAT LEARNED CIT(A) ERRED IN SUSTAINING THE PENALTY OF RS.95,500/ - LEVIED UNDER S ECTION 271 (1 ) (C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) . 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAD FILED A BELATED RETURN. ASSESSING OFFICER HAS ISSUED NOTICE UNDER S ECTION 143(2) OF THE A CT. S UBSEQUENTLY , THE ASSESSEE FILED A REVISED RETURN. IN THE REVISED RETURN , ASSESSEE DECLARED CAPITAL GAINS. T HE ASSESSING OFFICER INVOKED THE PROVISION OF 2 ITA NO. 742/MUM/2017 SHAHEEN M. MUJAWAR SECTION 50C OF THE ACT AND CAPITAL GAIN WAS LEVIED. THE MATTER HAD TRAVEL LED TO THE LEARNED CIT(A) . THEREAFTER THE MATTER WAS REFERRED TO THE D V O . SUBSEQUENTLY , ON ASSESSEE'S SHARE OF THE CAPITAL GAIN , PENALTY WAS LEVIED UNDER S ECTION 27 1(1)(C) OF THE ACT A MOUNTING TO RS. 95 , 500 / - . THE ASSESSEE'S EXPLANATION WAS THAT IT WAS A BONA FIDE MISTAKE. THAT THE MISTAKE WAS ON THE PART OF ASSESSEE'S A CCOUNTANT WAS NOT ACCEPTED BY THE AUTHORITIES BELOW. IT WAS FURTHER HELD THAT A BELATED RETURN CANNOT BE REVISED. HENCE , IT WAS HELD THAT ASSESSEE CANNOT BE EXONERATED OF ITS LIABILITY BY CLAIMING THAT IT H AD FILED AN INVALID REVISED RETURN. 3. AGAINST THE LEVY OF PENALTY BY THE ASSESSING OFFICER AND ITS SUBSEQUENT CONFIRMATION BY THE LEARNED CIT(A), THE ASSESSEE HAS FILED APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE COUN SEL AND PERUSED THE RECORDS. THE L EARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSEE HAS SUO MOTO FILED A REVISED RETURN WITHOUT ANY QUERY OR ACTION BY THE ASSESSING OFFICER . HE SUBMITTED THAT THERE WAS NO CONTUMACIOUS CONDUCT ON THE PART OF THE ASSESSEE AND THAT THE AMOUNT WAS INADVERTENTLY SHOWN IN UNSECURED LOAN. HENCE , HE SUBMITTED THAT ASSESSEE CANNOT BE VISITED WITH THE RIGOURS OF PENALTY UNDER SECTION 271 (1)(C) OF THE ACT . 5. F URTHERMORE , THE LEARNED COUNSEL SUBMITTED THAT PENALTY HAS BEEN INITIATED ON THE GROUND THAT THERE IS FILING OF INACCURATE PARTICULARS OF INCOME. HOWEVER , HE SUBMITTED THAT FINAL PENALTY HAS BEEN LEVIED ON CONCEALMENT OF INCOME. HE SUBMITTED THAT THIS IS APART FROM THE FACT THAT THERE IS NO STRIKING - OFF OF THE PARTICULAR LIMB SPECIFYING THE CHARG ES ON THE ASSESSEE IN THE PENALTY 3 ITA NO. 742/MUM/2017 SHAHEEN M. MUJAWAR NOTICE. HENCE , THE LEARNED COUNSEL OF THE ASSESSEE STATED T HAT THE PENALTY MAY KINDLY BE DELETED. 6. PER CONTRA , THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW . 7. U PON CAREFUL CONSIDERATION , WE FIND THAT ASSESSEE HAS FILED A REVISED RETURN BEFORE THE DETECTION OR ANY QUERY ON THE IMPUGNED SUBJECT BY THE REVENUE AUTHORITIES. THE ASSESSEE'S CLAIM OF FILING THE REVISED RETURN HAS BEEN NEGATIVED ON THE GROUND THAT AT THE EXTANT PO INT O F TIME THERE WAS NO PROVISION FOR REVISING A BELATED RETURN. IT IS UNDISPUTED THAT SUBSEQUENTLY THE A CT WAS AMENDED AND REVISION OF BELATED RETURN WAS ALSO PERMITTED. FURTHERMORE , WE NOTE THAT THE IMPUGNED AMOUNT W AS SHOWN IN UNSECURED LOAN. THE AS SESSEE HAS SUBMITTED THAT THIS WAS AN INADVERTENT MISTAKE ON THE PART OF THE A CCOUNTANT OF THE ASSESSEE WHICH HAS NOT BEEN ACCEPTED BY THE AUTHORITIES BELOW. F U RTHERMORE , WE NOTE THAT HONOURABLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS FORTUNE HOTE L S AND ESTATES (P.) LTD. , [2014] 52 T AXMANN.COM 330 (BOMBAY) HAD EXPOUNDED THAT WHEN IN RESPECT OF SALE OF PROPERTY , MATTER WAS REFERRED TO DV O TO DETERMINE SALE CONSIDERATION AT A HIGHER AMOUNT, THAT BY ITSELF WOULD NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS OF INCOME SO AS TO LEVY PENALTY UNDER S ECTION 271 ( 1 )(C) OF THE ACT . FURTHERMORE , THE HONBLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS (P.) LTD. VS CIT, 348 ITR 306 (SC) HAD EX PO UNDED THAT AN INADVERTENT ERROR CANNOT LEAD TO RIGOUR S OF PENALTY. FURTHERMORE , A LARGER BE N CH OF THE HONOURABLE COURT IN THE CASE OF HINDUSTAN S TEEL LTD. VS STATE OF ORISSA , 83 ITR 26 (SC) HAD EXPOUNDED THAT WHEN THE CONDUCT OF THE ASSESSEE IS NOT 4 ITA NO. 742/MUM/2017 SHAHEEN M. MUJAWAR CONTUMACIOUS , THE AUTHORITY MAY NOT LEVY THE PENALTY . THAT TECHNICAL AND VENIAL BREACH MAY NOT LEAD TO LEVY OF PENALTY. 8. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT , IN OUR CONSIDERED OPINION , THE CONDUCT OF THE ASSESSEE IN THIS CASE IS NOT CONTUMACIOUS TO WARRANT LEVY OF PENALTY AND ASSESSEE 'S PLEA THAT THERE WAS AN INADVERTENT ERROR ON THE PART OF THE A CCOUNTANT DESERVES TO BE ACCEPTED. FURTHERMORE , ADMITTEDLY THE A CT WAS SUBSEQUENTLY AMENDED TO PROVIDE FOR REVISION OF THE BELATED RETURN, HENCE THE ASSESSEE CAN AT BEST BE HELD FOR A TECHNIC AL AND VENIAL BREACH NOT LIABLE FOR PENALTY. 9. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT , IN OUR CONSIDERED OPINION , ASSESSEE DOESN'T DESERVE TO BE VISITED BY THE RIGOURS OF PENALTY UNDER S ECTION 271 (1)(C) OF THE ACT . HENCE , WE SET - ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE LEVY OF PENALTY. 10. SINCE WE HAVE DELETED THE LEVY OF PENALTY ON THE MERITS, THE ADJUDICATION ON JURISDICTION , AS CANVASSED BY THE LEARNED COUNSEL OF THE ASSESSEE , IS ONLY OF ACADEMIC INTEREST. HENCE , WE AR E NOT ENGAGING INTO THE SAME. 11. IN THE RESULT , THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 6 T H F E B R U A R Y , 20 2 0 . SD/ - SD/ - (RAM LAL NEGI) JUDICIAL MEMBER (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATE : 6 T H F E B R U A R Y , 20 2 0 *SSL* 5 ITA NO. 742/MUM/2017 SHAHEEN M. MUJAWAR COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, G BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI