MR. SHALOK HARI NAGPAL, MUMBAI V. ACIT-CIRCLE-19(3), MUMBAI

ITA 758/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3588 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 11-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Assessee Lawyers: RAKESH SINSALEWALA
• Section: 271(1)(c); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJUNATH A , ACCOUNTANT MEMBER ITA NO. 758 / MUM . /201 9 ( ASSESSMENT YEAR : 20 12 13 ) SHALOK HARI NAGPAL 8/B, DEV ASHISH, PEDDAR ROAD OPP. JASLOK HOSPITAL, MUMBAI 400 026 PAN AABPN3142R . APPELLANT V/S ASSTT . COMMISSIONER OF INCOME TAX CIRCLE 19(3), MUMBAI . RESPONDENT A SSESSEE BY : SHRI RAKESH SINSALEWALA REVENUE BY : SHRI SAURABH DESHPANDE DATE OF HEARING 04 .0 2 .2020 DATE OF ORDER 04.03.2020 O R D E R PER SAKTIJIT DEY. J.M. THE CAPTIONED APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 10 TH DECEMBER 2018 , PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 20 1 2 13 . 2. BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR TH E ASSESSMENT YEAR UNDER DISPUTE THE ASSESSEE FILED HIS RETURN OF INCOME ON 28 TH SEPTEMBER 2012, DECLARING TOTAL INCOME OF ` 46,89,137. DURING THE 2 SHALOK HARI NAGPAL ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE AS SESSEE HAS CLAIMED VARIOUS EXPENDITURE S TOWARDS TEMPO CHARGES, CONVEYANCE, PETROL, TRAVELLING, SUNDRY EXPENSES, ETC., CALLED UPON THE ASSESSEE TO FURNISH THE SUPPORTING DETAILS. THOUGH, THE ASSESSEE FURNISHED CERTAIN D ETAILS, HOWEVER, THE ASSESSING OFFICER NOT BEING SATISFIED WITH THE EVIDENCES FURNISHED BY THE ASSESSEE, DISALLOWED 20% OUT OF THE EXPENDITURE CLAIMED OF ` 13,35,870, WHICH WORKED OUT TO ` 2,67,174. SINCE , AN AMOUNT OF ` 36,177, HAS ALREADY BEEN DISALLOWED , THE ASSESSING OFFICER MADE A NET DISALLOWANCE OF ` 2,30,997. CONTESTING THE AFORESAID DISALLOWANCE, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. HOWEVER, LEARNED COMMISSIONER (APPEALS) ENHANCED THE INCOME OF THE ASSESSEE BY DISALL OWING PETROL EXPENSES OF ` 82,790 AS AGAINST THE DISALLOWANCES MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PETROL EXPENSES. FURTHER, ON THE BASIS OF SUCH ADDITION LEARNED COMMISSIONER (APPEALS) INITIATED PROCEEDING FOR IMPOSITION OF PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT ALLEGING CONCEALMENT OF INCOME AND ULTIMATELY PASSED AN ORDER IMPOSING PENALTY OF ` 30,369. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , WHILE DECIDING ASSESSEES APPE AL CONTESTING THE AFORESAID DISALLOWANCE MADE, THE TRIBUNAL IN ITA NO.5466/MUM./2018, DATED 15 TH OCTOBER 2019, HAS 3 SHALOK HARI NAGPAL DELETED THE ENHANCEMENT MADE BY THE FIRST APPELLATE AUTHORITY AND HAS GRANTED FURTHER RELIEF TO THE ASSESSEE BY RESTRICTING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TO 10% OF THE EXPENDITURE CLAIMED. THUS, HE SUBMITTED , WHEN THE ADDITION MADE HAS BEEN DELETED, PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT SURVIVE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE REL IED UPON THE OBSERVATIONS O F LEARNED COMMISSIONER (APPEALS). 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, ON THE AD HOC DISALLOWANCE MADE OF 20% OUT OF THE EXPENDITURE CLAIMED, THE ASSESSING OFFICER HAS NOT I NITIATED ANY PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF THE ACT. WHILE DECIDING ASSESSEES APPEAL CONTESTING THE SAID DISALLOWANCE LEARNED COMMISSIONER (APPEALS) ENHANCED THE INCOME BY DISALLOWING THE PETROL EXPENSES OF ` 82,750. ON THE BASIS OF THE AFORESAID DISALLOWANCE, PENALTY UN DER SECTION 271(1)(C) OF THE ACT HAS BEEN IMPOSED. HOWEVER, WHILE CONSIDERING ASSESSEES APPEAL CHALLENGING THE AFORESAID DISALLOWANCE, THE TRIBUNAL HAS DELETED THE ADDITION AND HAS FURTHER RESTRICTED THE ADDITION MADE BY THE ASSESSING OFFICER TO 10% OF TH E EXPENDITURE CLAIMED. THUS, IT IS VERY MUCH CLEAR THAT THE ADDITION ON THE BASIS OF WHICH PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN IMPOSED IS NO MORE IN EXISTENCE. THAT BEING THE CASE, PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT CANNOT S URVIVE. 4 SHALOK HARI NAGPAL ACCORDINGLY, WE DELETE THE PENALTY IMPOSED OF ` 30,369, UNDER SECTION 271(1)(C) OF THE ACT. GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 04.03.2020 SD/ - G. MANJUNATH A ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 04.03.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI