PUJA C. KHANDELWAL, MUMBAI V. ACIT WD 19(2), MUMBAI

ITA 842/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4006 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E SRIDHAR
• Assessee Lawyers: HARI S RAHEJA

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.842/MUM/2014 ASSESSMENT YEAR:2008-09 SMT. PUJA C KHANDELWAL, 601, EAST VIEW, TPS III 6 TH ROAD, SANTACRUZ (E), MUMBAI-400055 / VS. ACIT WARD-19(2), MUMBAI ( /ASSESSEE) ( ! / REVENUE) PAN. NO . AGTPK1301R / ASSESSEE BY SHRI HARI S. RAHEJA ! / REVENUE BY SHRI E. SRIDHAR ' !# $ % / DATE OF HEARING : 13/04/2016 $ % / DATE OF ORDER: 20/04/2016 ITA NO.842/MUM/2014 SMT. PUJA C KHANDELWAL 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 12/11/2013 OF THE FIRST APPELLATE AUTHORITY, MUMBAI , CONFIRMING PENALTY OF RS.68,000/- IMPOSED U/S 271(1 )(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING OF THIS APPEAL, WE FOUND THAT TH ERE IS DELAY OF ONE DAY IN FILING THE APPEAL. CONSIDERI NG THE FACTS MENTIONED IN THE APPLICATION FOR CONDONATION OF DEL AY, SUPPORTED BY AN AFFIDAVIT, THE DELAY IS CONDONED. 2.1. SO FAR AS, PENALTY U/S 271(1)(C) OF THE ACT I S CONCERNED, THE CRUX OF ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT BROKERAGE WAS PAID BY CHEQUE, THER EFORE, NEITHER THERE IS CONCEALMENT NOR FURNISHING INACCUR ATE PARTICULARS. IT WAS ALSO CONTENDED THAT THE ASSESS EE OBTAINED CONFIRMATION FROM THE CONCERNED PARTIES. ON THE OTH ER HAND, THE LD. DR, CONTENDED THAT QUANTUM ADDITION HAS BEE N ACCEPTED BY THE ASSESSEE, THEREFORE, PENALTY WAS R IGHTLY LEVIED/CONFIRMED. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS TRADING IN IRON AND STEEL AND REGULARLY FILING HER RETURN ALONG WITH AUDIT REPORT . THE ASSESSEE SHOWED EXPENDITURE UNDER THE HEAD COMMISSI ON ITA NO.842/MUM/2014 SMT. PUJA C KHANDELWAL 3 AND BROKERAGE AMOUNTING TO RS.1,06,28,546/- OUT OF WHICH CONFIRMATION FOR RS.2,04,699/- COULD NOT BE FILED B Y THE ASSESSEE, DURING SCRUTINY BUT THE PAYMENTS WERE MAD E THROUGH CREDITORS ACCOUNT PAYEE CHEQUE. THE SAID EXPENDITURE WAS DISALLOWED BY THE LD. ASSESSING OFF ICER AND ADDED AS INCOME. IT IS NOTED THAT THE QUANTUM ADDIT ION OF RS.2, 04,669/- WAS ACCEPTED BY THE ASSESSEE AND ONL Y ON THAT BASIS, THE PENALTY WAS LEVIED. THERE IS NO DIS PUTE TO THE FACT THAT THE PAYMENTS WERE MADE THROUGH CREDITORS ACCOUNT PAYEE CHEQUE, THEREFORE, SO FAR AS, PAYMENTS ARE CO NCERNED IS NOT IN DISPUTE. TDS WAS DULY DEDUCTED. NOW, QUESTIO N ARISES WHETHER PENALTY WAS RIGHTLY LEVIED/CONFIRMED. UNDER THE MATERIAL FACTS AVAILABLE ON RECORD, SO FAR AS THE F IVE PARTIES NAMELY, HIREN R.MEHTA (RS.46,933/-), IDBI BANK (RS.10,560/-), SHARWAN KUMAR GOYAL (RS.60,150/-), BHAVARLAL BANGAR (RS.76,743/-) AND VISHAR R. MENIAR (RS.10,313/-) TOTAL RS.2,04,699/- IS CONCERNED, THE ASSESSEE AT THE LATER STAGE OBTAINED CONFIRMATION. SINCE TH E PAYMENTS THROUGH CREDITORS ACCOUNT PAYEE CHEQUE IS NOT IN DI SPUTE AND TDS WAS DEDUCTED THEREFROM, AT LEAST PENALTY WILL N OT SURVIVE BECAUSE NEITHER THERE IS CONCEALMENT OF INC OME NOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME . IT MAY BE A GOOD CASE FOR QUANTUM ADDITION BUT CERTAINLY N OR FOR PENALTY. FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT EITHER THERE SHOULD BE CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. IN THE PRESE NT APPEAL, BONA-FIDE CLAIM WAS MADE BY THE ASSESSEE FOR PAYING ITA NO.842/MUM/2014 SMT. PUJA C KHANDELWAL 4 BROKERAGE. IT IS SOMETHING DIFFERENT THAT DURING AS SESSMENT STAGE, THE ASSESSEE COULD NOT FURNISH CONFIRMATION FOR RS.2,04,699/- OUT OF THE TOTAL CLAIM OF RS.1,06,28, 546/-. SINCE, THE PAYMENT WAS MADE THROUGH ACCOUNT PAYEE CHEQUE, THEREFORE, THERE IS NO QUESTION OF CONCEALM ENT, THUS, THE PENALTY OF RS.68,000 IS DIRECTED TO BE DELETED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 13/04/2016. SD/- SD/- ( ASHWA NI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' # MUMBAI; ' DATED : 20/04/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / ' 0 ( )* ) / THE CIT, MUMBAI. 4. / / ' 0 / CIT(A)- , MUMBAI 5. 2!3 - , / )*% ) 4 , ' # / DR, ITAT, MUMBAI 6. 5 6# / GUARD FILE. / BY ORDER, .2* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' # / ITAT, MUMBAI