SAMIR P MOMIN, MUMBAI V. ITO WD 24(3)3, MUMBAI

ITA 884/MUM/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4525 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA LD SR
• Assessee Lawyers: SUNIL MAKHIJA LD
• Keywords: Business income; Reasonable cause
• Section: 271(1)(c); 143(3)

Judgement Text

ITA NO.884/MUM/2018 SAMIR P.MOMIN ASSESSMENT YEAR: 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.884/MUM/2018 ( / ASSESSMENT YEAR: 2008-09) SHRI SAMIR P.MOMIN B/302, NEW EKTA CO-OP HOUSING SOCIETY LIMITED, BEHRAM BAUG JOGESHWARI(W),MUMBAI-400 102 / VS. ITO, WARD - 24(3)(3) C-11, ROOM NO.705 BKC, BANDRA(E) MUMBAI-400 051 !' ./ ./PAN/GIR NO. AKOPM-1090-N ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : SHRI. SUNIL MAKHIJA-LD. AR REVENUE BY : SHRI T.S. KHALSA- LD. SR.AR / DATE OF HEARING : 09/02/2021 / DATE OF PRONOUNCEMENT : 09/02/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEA R [IN SHORT REFERRED TO AS AY] 2008-09 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-42, MUMBAI [IN SHORT REFERR ED TO AS CIT(A)], APPEAL NO.CIT(A)-42/IT-270/14-15, DATED 11/01/2017 WHICH HAS CONFIRMED CERTAIN PENALTY U/S 271(1)(C) A S LEVIED BY LD. AO VIDE PENALTY ORDER DATED 13/04/2014. 2, THE REGISTRY HAS NOTED A DELAY OF 330 DAYS IN TH E APPEAL, THE CONDONATION OF WHICH HAS BEEN SOUGHT BY THE ASSESSE E ON THE ITA NO.884/MUM/2018 SAMIR P.MOMIN ASSESSMENT YEAR: 2008-09 2 STRENGTH OF CONDONATION PETITION DATED 12/11/2018 W HICH IS SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE. IT HAS BEEN SUBMITTED THAT THERE WAS REASONABLE CAUSE FOR DELAYED FILING OF APPEAL SINCE THE PENALTY WAS SUBSTANTIALLY REDUCED BY LD. CIT(A) AND KEEPING IN VIEW THE COST OF LITIGATION AND LABOR INVOLVED, THE ASSESSEE DECIDED NOT THE FILE FURTHER APPEAL. HOWEVER, THE DEPARTMEN T HAS SUBSEQUENTLY ISSUED NOTICE U/S 279(2) WHICH HAS LED THE ASSESSEE TO CONTEST THE PENALTY SINCE THERE WAS NOT ANY CONC EALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME. THOUGH LD. DR OPPOSED CONDONATION, HOWEVER, KEEPING IN VIE W THE CONTENTS OF THE AFFIDAVIT AND SUBMISSIONS MADE BEFO RE US WE ARE INCLINED TO CONDONE THE DELAY AND PROCEED WITH ADJU DICATION OF APPEAL ON MERITS. 3. THE FACTS LEADING TO PENALTY ARE THAT WHILE FRAM ING AN ASSESSMENT U/S 143(3) ON 27/12/2010, THE ASSESSEE W AS SADDLED WITH QUANTUM ADDITIONS OF RS.17.58 LACS ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT. THE ASSESSEE EXPLAIN ED THAT THE MONEY WAS BORROWED FROM VARIOUS PERSONS FOR THE PUR POSE OF OBTAINING US VISA. HOWEVER, IN THE ABSENCE OF SATIS FACTORY EXPLANATION, THE AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE. UPON FURTHER APPEAL, LD. CIT(A) RESTRICTED THE ADDI TION TO RS.10.53 LACS, BEING ACTUAL CASH DEPOSITED BY THE ASSESSEE. THE TRIBUNAL, VIDE ORDER DATED 01/01/2016, RESTRICTED THE ADDITIO NS TO RS.3.85 LACS BEING PEAK AMOUNT. 4. IN THE MEANWHILE, LD. AO IMPOSED PENALTY OF RS.3 .49 LACS U/S 271(1)(C) FOR FURNISHING OF INACCURATE PARTICUL ARS OF INCOME LEADING TO CONCEALMENT OF INCOME VIDE PENALTY ORDER DATED ITA NO.884/MUM/2018 SAMIR P.MOMIN ASSESSMENT YEAR: 2008-09 3 13/03/2014. UPON FURTHER APPEAL, LD. CIT(A), TAKING COGNIZANCE OF TRIBUNAL ORDER DATED 01/01/2016, DIRECTED LD. AO TO REDUCE THE PENALTY ONLY TO THE EXTENT OF QUANTUM ADDITION OF R S.3.85 LACS AS SUSTAINED BY THE TRIBUNAL. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. THE LD. AR HAS URGED THAT LD. AO HAS FAILED TO S PECIFY THE EXACT CHARGE I.E. INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME WHILE LEVYING PENALTY AGAINST THE ASSESSE E. HOWEVER, UPON PERUSAL OF PENALTY ORDER, THIS ARGUMENT IS UNT ENABLE SINCE THE PENALTY HAS ONLY BEEN LEVIED FOR FURNISHING OF INAC CURATE PARTICULARS OF INCOME LEADING TO CONCEALMENT OF INCOME AND THE ASSESSEE WAS WELL AWARE OF THE CHARGES AGAINST HIM SINCE IT WAS THE ONLY ADDITION IN THE ASSESSMENT. 6. THE LD. AR HAS ALSO URGED THAT THE MONEY BELONGE D TO VARIOUS PEOPLE AND CASH WAS DEPOSITED IN THE BANK I N ORDER TO SHOW A BETTER BANK BALANCE SO AS TO OBTAIN A US VIS A. THE NAMES OF PERSONS WHO ADVANCED LOAN OF RS.3.60 LACS WAS FU RNISHED BEFORE LD. CIT(A) DURING APPELLATE PROCEEDINGS. FUR THER, THE SUMMARY OF CASH DEPOSITS REVEALED THAT THE ASSESSEE HAD PEAK DEPOSIT OF RS.3.85 LACS WHICH WAS WITHOUT CONSIDERI NG BUSINESS INCOME, AGRICULTURAL INCOME AND OPENING CASH BALANC E. THOUGH THE SAID EXPLANATION HAS NOT BEEN ACCEPTED AND THE ADDI TIONS HAVE BEEN SUSTAINED TO THE EXTENT OF PEAK DEPOSIT OF RS. 3.85 LACS, HOWEVER, THE STATED FACT ALONE, IN OUR CONSIDERED O PINION, WOULD NOT BE A GOOD GROUND FOR IMPOSITION OF PENALTY IN T ERMS OF DECISION OF HONBLE SUPREME COURT IN CIT V/S RELIANCE PETROPRODUCTS LTD. ITA NO.884/MUM/2018 SAMIR P.MOMIN ASSESSMENT YEAR: 2008-09 4 (322 ITR 158). THEREFORE, BY DELETING THE IMPUGNED PENALTY OF RS.1.07 LACS, WE ALLOW THE APPEAL. ORDER PRONOUNCED ON 09 TH FEBRUARY, 2021. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 09/02/2021 SR.PS, KASARLA THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. - ( ) / THE CIT(A) 4. - / CIT CONCERNED 5. ./% ( 0 , 0 , / DR, ITAT, MUMBAI 6. /123 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.