A.C.I.T.-2(3), MUMBAI V. TATA AUTOCOMP SYSTEMS LTD., MUMBAI

ITA 7445/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83461 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 23-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANUSHA SINHAAR
• Keywords: Difference of opinion
• Section: 143(3); 27; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.7445/M/2011 ASSESSMENT YEAR: 2004-05 DY. CIT-2(3), R. NO.555 AAYAKAR BHAVAN, M.K. RD. MUMBAI -400020 VS. TATA AUTOCOMP SYSTEMS LTD. BOMBAY HOUSE, 24, HOMI MODY STREET, FORT, MUMBAI 400 005 PAN: AAACT1848E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ KUMAR (DR) RESPONDENT BY : SHRI KANCHAN KAUSHAL & MS. ANUSHA SINHA(AR) DATE OF HEARING : 07.08.2014 DATE OF PRONOUNCEMENT : 07.08.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENU E AGAINST THE ORDER OF THE CIT(A) DATED 26.05.2009 RELEVANT TO ASSESSME NT YEAR 2004-05 CHALLENGING THE DELETION OF THE PENALTY AMOUNT OF R S.16,50,250 /- WHICH WAS LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE INC OME TAX ACT. 2. IN BRIEF, THE FACTS OF THE CASE ARE THAT THE AS SESSEE IN HIS RETURN OF INCOME HAD CLAIMED INTEREST INCOME OF RS.46 LAKH AS BUSINE SS INCOME. THE AO ACCEPTED THE SAID CLAIM IN ASSESSMENT PROCEEDINGS U /S 143(3) OF THE ACT. HOWEVER THE LD. COMMISSIONER OF INCOME TAX PASSED A N ORDER U/S 263 OF THE ACT DIRECTING THE AO TO ASSESS THE SAID INCOME UNDE R THE HEAD INCOME FROM OTHER SOURCES. THE AO THEREFORE ASSESSED THE SAME U NDER THE HEAD INCOME FROM OTHER SOURCES. HE FURTHER HELD THAT IT WAS A C ASE OF EVASION OF TAX AS THE ASSESSEE HAD ATTEMPTED TO SET OFF THE BUSINESS LOSS ES AGAINST THE INTEREST ITA NO7445/M/2011 2 INCOME. THE AO THEREFORE INITIATED PENALTY PROCEED INGS. HE WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE THAT HE HAD NOT CONCEALED ANY INCOME. THE AO THUS LEVIED PENALTY UNDER SECTION 27 1(1)(C) OF THE INCOME TAX ACT AT RS. RS.16,50,250/-. IN FIRST APPEAL THE LD. CIT(A) DELETED THE PENALTY OBSERVING THAT IT WAS NOT A CASE OF FURNISHING INAC CURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. THE REVENUE IS THUS IN AP PEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES. THE ASSESSEES TREATMENT OF INCOME UNDER T HE HEAD INCOME FROM OTHER SOURCES WAS DULY ACCEPTED BY THE AO UNDER SCRUTINY ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT. IT WAS ONLY AT THE DIRECTION/OR DER OF THE CIT U/S 263 OF THE ACT, THAT THE HEAD OF INCOME WAS CHANGED. HENCE THE FACTS ITSELF SPEAK THAT THE ASSESSEES TREATMENT OF HEAD OF INCOME WAS ONE OF T HE JUSTIFIABLY ADMISSIBLE HEAD THAT IS WHY IT WAS EARLIER NOT DISPUTED BY THE AO. HENCE IT CANNOT BE SAID THE CLAIM OF THE ASSESSEE REGARDING HEAD OF THE INC OME WAS NOT BONAFIDE. IN OUR VIEW IT MAY BE A CASE OF DIFFERENCE OF OPINION BUT NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. MERELY BECAUSE THE AO HAD TREATED THE INCOME UNDER A DIFFERENT HEAD, I TSELF, IS NOT SUFFICIENT TO HOLD THAT THE ASSESSEE HAD FURNISHED INACCURATE PAR TICULARS OF INCOME. UNDER SUCH CIRCUMSTANCES WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) DELETING THE PENALTY WHICH WAS WRONGLY LEVIED BY TH E AO. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS HER EBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.08. 2014 . SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 07.08.2014. *A.K.PATEL ITA NO7445/M/2011 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.