SHYAM SUNDER BRAR, Nagpur V. ITO-WARD-5(2), Nagpur

ITA 83/NAG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93408 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Salary income; Reasonable cause
• Section: 143(3)

Judgement Text

1 ITA NO. 83/NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.83/NAG/2014 ASSESSMENT YEAR : 2008 - 09. SHYAM SUNDER BRAR, THE INCOME - TAX OFICER, PLOT NO. 114, FLAT N O. 201, V/S. WARD - 5(2), MAHALAXMI APPTS. NAGPUR. SHIVAJI NAGAR, NAGPUR. PAN : ACTPB4810G APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING - 23 - 06 - 2015 DATE OF PRONOUNCEMENT 26 TH JUNE, 2015. O R D E R PER SHRI MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) - I I, NAGPUR DATED 17 - 09 - 2013. THE SUBSTANTIVE GROUNDS RAISED ARE REPRODUCED BELOW: 1. THAT THE ERROR CAUSED DUE TO REASONABLE CAUSE AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE NO PENALTY SHOULD HAVE BEEN LEVIED. 2. THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE WHERE THE INCOME HAD BEEN DISCLOSED BY THE EMPLOYER BY FILING RETURN OF TDS THE INCOME DID 2 ITA NO. 83/NAG/2014 NOT REMAIN UNDISCLOSED OR CONCEALED AND NO PENALTY COULD BE LEVIED U/S 271(1)(C). 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE FOR UNPAID TAX OF ` .4,855 PENALTY OF ` .145,000 CANNOT BE LEVIED. 2. ON THE DATE OF HEARING NO ONE HAS APPEARED FROM THE SIDE OF THE APPELLANT ALTHOUGH THE NOTICE OF HEARING WAS DULY SERVED ON THE ASSESSEE AND THE A.D. CARD IS AVAILABLE ON RECORD. CONSIDERING THE SMALLNESS OF THE ISSUE, WE HAVE DECIDED TO PROCEED EXPARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED D.R. WHO HAS PLACED RELIANCE ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(APPEALS). 3. F ACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 14 - 10 - 2010 AND THE PENALTY ORDER UNDER SECTION 271(1)(C) DATED 21 - 04 - 2011 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY HAS FILED A RETURN OF INCOME AT ` .4, 20,520/ - . THE ASSESSEE IS AN EMPLOYEE OF RAYMOND LIMITED. THERE WAS SOME DISCREPANCY IN THE RETURN IN RESPECT OF SALARY CERTIFICATE AND THE TDS DEDUCTED WHICH WAS NOTICED BY THE ASSESSING OFFICER IN THE FOLLOWING MANNER: DURING THE COURSE OF VERIFICATIO N OF DOCUMENTS SUBMITTED BY THE ASSESSEE IT IS SEEN THAT THE ASSESSEE HAS SUBMITTED 2 FORM NO. 16 ISSUED BY RAYMOND LTD. F ROM TWO DIFFERENT PLACE OUT OF WHICH THE ASSESSEE SHOWN INCOME FROM SALARY FROM 1 FORM N O. 16 ONLY, AND THE ASSESSEE FAILED TO SH OWN INCOME FROM 1 FORM NO. 16 AMOUNTING TO ` .4,38,846/ - (AFTER ALLOWING DEDUCTION U/C VIA). THE SAME IS TO BE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. FOR CONCEALING / FURNISHING OF IN - ACCURATE PARTICULARS PENALTY PROCEEDINGS U/S 271(C) ARE INIT IATED. 3.1 RESULTANTLY THE BALANCE AMOUNT OF SALARY WAS ALSO TAXED IN THE HANDS OF THE ASSESSEE AND THE PENALTY WAS LEVIED. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LEARNED CIT(APPEALS) HAS UPHELD THE ACTION OF THE ASSESSING 3 ITA NO. 83/NAG/2014 OFFIC ER ON THE GROUND THAT THERE WAS NO VALID EXPLANATION OFFERED BY THE ASSESSEE FOR OMISSION OF SALARY INCOME IN THE RETURN FURNISHED. 4. AFTER CONSIDERING THE ORDERS OF THE REVENUE AUTHORITIES IN THE LIGHT OF THE FACTS THAT THE SALARY DETAILS AS WELL AS T HE TDS DETAILS WERE VERY MUCH IN THE KNOWLEDGE OF THE REVENUE DEPARTMENT, IT WAS NOT JUSTIFIABLE TO HOLD THAT THIS ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME. THE ASSESSING OFFICER HAS MADE AN OBSERVATION THAT THE DOCUMENTS FURNISHED BY THE ASSE SSEE AND ON VERIFICATION OF THOSE DOCUMENTS IT WAS FOUND THAT THE EMPLOYER HAD ISSUED TWO FORM NO. 16 AND ONE OF THEM HAD ESCAPED THE ATTENTION OF THE ASSESSEE WHILE FILING THE INCOME - TAX RETURN. OTHERWISE ALSO THE SALARY INCOME WHICH WAS CONSIDERED AS CON CEALMENT OF INCOME WAS ALSO SUBJECTED TO THE DEDUCTION OF TAX AT SOURCE. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT EXPLANATION 1 TO SECTION 271(1)(C) IS NOT APPLICABLE BECAUSE THE FACTS MATERIAL TO THE COMPUTATION OF TOTAL INCOME WERE ON RECORD AND TH E ASSESSEE HAS OFFERED AN EXPLANATION AND THAT EXPLANATION WAS NOT FOUND TO BE FALSE. EVEN EXPLANATION 1(B) IS ALSO NOT TO BE APPLIED BECAUSE THE ASSESSEE HAS OFFERED AN EXPLANATION WHICH WAS DULY SUBSTANTIATED AND THAT EXPLANATION COULD BE HELD AS A BONA FIDE EXPLANATION. THEREFORE, UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, WE HEREBY REVERSE THE FINDINGS OF THE AUTHORITIES BELOW AND ALLOW THE GROUND. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OP EN COURT ON THIS 26 TH DAY OF JUNE, 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. NAGPUR, DATED: 26 TH JUNE, 20 15. 4 ITA NO. 83/NAG/2014 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE