Sh. Surinder Singh, Chandigarh V. ITO, W-1(2), Chandigarh

ITA 8/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5990 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: R R THAKUR ITP
• Keywords: TDS
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 1276/CHD/2018 / ASSESSMENT YEAR : 2015-16 SHRI BALBIR SINGH, H.NO. 621, PHASE-2, MOHALI VS. THE ITO, WARD 6(2), MOHALI ./PAN NO: AKCPS1407K / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI R.R. THAKUR, ITP ' ! / REVENUE BY : SH. MANJIT SINGH, CIT DR # $ % /DATE OF HEARING : 25.07.2019 &'() % / DATE OF PRONOUNCEMENT : 02.08. 2019 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 21.08.2018 OF THE COMMISSIONER OF INCOM E TAX (APPEALS)-2, CHANDIGARH [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE SOLE ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS REGARDING LEVY OF PENALTY U/S 271 (1)(C) OF THE INCOME TAX AC T, 1961 (IN SHORT 'THE ACT'). 3. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS NOTICED THAT THE ASSESSEE HAD EARNED AN INTEREST INCOME ON THE FDRS AMOUNTING TO RS. 8,5 1,822/- WHICH WAS ITA NO. 1276-CHD-2018- SHRI BALBIR SINGH, MOHALI 2 NOT DISCLOSED IN THE RETURN OF INCOME. HE, THEREFO RE, MADE THE ADDITION OF THE INTEREST INCOME INTO THE TAXABLE INCOME OF T HE ASSESSEE AND ALSO INITIATED PENALTY PROCEEDINGS U/S 271 (1)(C) OF TH E ACT. HE, FINALLY IMPOSED THE PENALTY @ 100% OF THE TAX AMOUNT SOUG HT TO BE EVADED ON THIS ALLEGEDLY CONCEALED INTEREST INCOME U/S 271 ( 1)(C) OF THE ACT. 4. BEING AGGRIEVED BY THE SAID ACTION OF THE ASSESS ING OFFICER, THE ASSESSEE FILED BEFORE THE CIT(A) BUT COULD NOT SUCC EED. 5. BEFORE THIS BENCH, THE LD. COUNSEL FOR THE ASSE SSEE HAS SUBMITTED THAT ASSESSEE IS A SALARIED PERSON AND DOES NOT KNO W THE NITTY-GRITTIES OF THE INCOME- TAX ACT. THAT THERE WAS NO INTENTION ON THE PART OF THE ASSESSEE TO CONCEAL ANY PART OF THE INCOME. THAT T HE ASSESSEE WAS NOT AWARE THAT THE INTEREST ACCRUED ON THE FDRS WAS REQ UIRED TO BE SHOWN IN THE RETURNED INCOME. THE LD. COUNSEL IN THIS RESP ECT HAS RELIED ON THE ORDER PASSED BY THE ASSESSING OFFICER DATED 28.9.20 17 PASSED U/S 154 / 155 OF THE INCOME TAX ACT. A PERUSAL OF THE SAID OR DER REVELS THAT THE BANK HAD DEDUCTED THE TDS OF RS. 81,584/- ON THE SA ID INTEREST INCOME ACCRUED ON FDRS. HOWEVER, THE ASSESSEE DUE TO HIS IGNORANCE NEITHER DISCLOSED THE INTEREST INCOME ON THE FDRS NOR CLAIM ED THE SET OFF OF TDS DEDUCTED BY THE BANK AGAINST THE TAX PAYABLE. T HE ASSESSING OFFICER SEPARATELY MADE THE ADDITION TO THE INTERES T INCOME ON FDRS BUT DID NOT GIVE THE BENEFIT OF TDS DEDUCTION WHICH WAS DULY SHOWN IN FORM NO. 26AS. THE ADDITION WAS CONFIRMED BY THE LD. CI T(A) ON THIS ISSUE. HOWEVER, LATER ON, IT WAS APPRISED TO THE LD. CIT (A) THAT THE ASSESSEE ITA NO. 1276-CHD-2018- SHRI BALBIR SINGH, MOHALI 3 HAS NOT BEING GIVEN CREDIT OF THE TDS DEDUCTED BY T HE BANK. THE LD. CIT(A) ACCORDINGLY VIDE ORDER DATED 28.8.2017 PASS ED U/S 154 OF THE ACT OBSERVED THAT A MISTAKE HAD OCCURRED IN HIS OR DER IN NOT GIVING CREDIT OF THE PREPAID TAXES / TDS TO THE ASSESSEE. HE ACCORDINGLY, RECOMPUTED THE INCOME OF THE ASSESSEE AFTER GIVING CREDIT OF THE TDS TO THE ASSESSEE. 6. FROM THE ABOVE FACTS, IT IS REVEALED THAT IT IS NOT AN INTENTIONAL CONCEALMENT OF INCOME ON THE PART OF THE ASSESSEE. IF THE INTENTION OF THE ASSESSEE HAD BEEN SO, HE MIGHT HAVE TAKEN THE BENEF IT OF TDS DEDUCTED BY THE BANK. HOWEVER, THE ASSESSEE OUT OF HIS IGNOR ANCE, NEITHER HAS SHOWN THE INTEREST INCOME ON FDR IN THE RETURN OF I NCOME NOR CLAIMED THE CREDIT OF THE TDS DEDUCTED BY THE BANK. OTHERW ISE ALSO, IF THE ASSESSEE WOULD HAVE SHOWN THE INTEREST INCOME IN TH E RETURN OF INCOME, THEN, IT WAS LIKELY THAT THE ASSESSING OFFICER WOU LD HAVE GIVEN HIM THE CREDIT OF TDS DEDUCTED AND THE RESULTANT EFFECT WOU LD HAVE BEEN OF NIL ADDITION INTO THE INCOME OF THE ASSESSEE ON THIS I SSUE. UNDER THE CIRCUMSTANCES, IN MY OPINION, IT IS NOT A CASE OF LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT. THE IMPUGNED PEN ALTY LEVIED BY THE ASSESSING OFFICER ON THIS ISSUE IS ORDERED TO BE DE LETED. 7. SO FAR AS TO THE ADDITION OF RS. 1 LACS CONFIRME D IN THE QUANTUM PROCEEDINGS ON ACCOUNT OF UNEXPLAINED CASH DEPOSITE D IN THE BANK ACCOUNT OF THE ASSESSEE IS CONCERNED, THE ASSESSEE HAS EXPLAINED THAT THE ITA NO. 1276-CHD-2018- SHRI BALBIR SINGH, MOHALI 4 ASSESSEE HAD WITHDRAWN THE AMOUNT OF RS. 5 LACS FR OM HIS BANK ACCOUNT ON 30.9.2014 WHICH WAS RE-DEPOSITED IN THE BANK ACC OUNT OF THE ASSESSEE ON 13.12.2015. THE ASSESSING OFFICER WITHOUT MENTIO NING ANY REASON ACCEPTED THE DEPOSIT OF RS. 4 LACS OUT OF THE SAID DEPOSITED AMOUNT AND MADE THE ADDITION OF RS. 1 LACS. THOUGH, THE ASSESS EE DID NOT AGITATE THE QUANTUM ADDITION IN APPEAL, HOWEVER, THE COUNSEL FO R THE ASSESSEE HAS SUBMITTED THAT THERE WAS NO JUSTIFICATION ON THE PA RT OF THE ASSESSING OFFICER TO BELIEVE THE DEPOSIT OF RS. 4 LACS AND NO T TO BELIEVE THE DEPOSIT OF RS. 1 LAC OUT OF THE REDEPOSITED AMOUNT OF RS. 5 LACS. 8. I HAVE GONE THROUGH THE BANK ACCOUNT STATEMENT O F THE ASSESSEE IN THE RESPECT. I FIND FORCE IN THE ABOVE SAID CONTENT ION OF THE ASSESSEE. THE PENALTY PROCEEDINGS ARE DIFFERENT FROM THE QUAN TUM PROCEEDING. FOR THE PURPOSE OF LEVY OF PENALTY, ANY OVER ACT OR OMI SSION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME ON THE PART OF THE ASSESSEE IS REQUIRED TO BE ESTABLISHED. SINC E I AM OF THE VIEW THAT IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNIS HING OF INACCURATE PARTICULARS OF INCOME, HENCE, THE PENALTY ON THIS A CCOUNT IS NOT SUSTAINABLE. 9. SO FAR AS THE PENALTY FOR NOT DECLARING THE INTE REST INCOME OF RS. 47,280/- FROM SAVING BANK ACCOUNT IS CONCERNED, IN MY VIEW, AS PER THE DISCUSSION MADE ABOVE, IN RESPECT TO THE INTEREST I NCOME ON FDRS AND APPLYING THE SAME RATIO, IT DOES NOT APPEAR THAT TH E ASSESSEE HAD ITA NO. 1276-CHD-2018- SHRI BALBIR SINGH, MOHALI 5 DELIBERATELY MADE ANY EFFORT TO AVOID PAYMENT OF TA XES BY WAY OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME. IN VIEW OF THIS, THE LEVY OF PENALTY ON ALL THE THR EE COUNTS IS ORDERED TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.08.2019. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 02.08.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR