ACIT, CHENNAI V. Uppili Balaji, CHENNAI

ITA 949/CHNY/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3844 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! ' . # , % & BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICI AL MEMBER ./ I.T.A.NO.949/MDS/2016 ( / ASSESSMENT YEAR: 2011-12) THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-18, 520,WANAPARTHY BLOCK, CHENNAI-34. VS SHRI UPPILI BALAJI, 2A, KG TOWERS, 30, BYPASS ROAD, VELACHERY, CHENNAI-600 042. PAN: ABNPB0585H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. A.V.SREEKANTH, JCIT /RESPONDENT BY : MR. M.KARUNAKARAN, ADVOCATE /DATE OF HEARING : 15 TH SEPTEMBER, 2016 /DATE OF PRONOUNCEMENT : 2 ND DECEMBER, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE REVENUE AGGRIEVED BY TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- 15, CHENNAI DATED 12.01.2016 IN ITA NO.112/CIT(A) -15/14- 15 PASSED UNDER SECTION 271(1)(C) R.W.S. 250(6) O F THE ACT. 2. THE REVENUE HAS RAISED SEVERAL GROUNDS IN ITS APPEAL, HOWEVER, THE CRUX OF THE ISSUE IS AS FOLLOWS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE PENALTY AMOUNTING TO ` 30,00,000/- LEVIED BY THE LEARNED ASSESSING OFFICER TOWARDS UNDISCLOSED INCOME FROM SALARY OF ` 90,90,394/-, INTEREST RECEIVED 2 ITA NO.949/MDS/2016 FROM BANK RS.1490/- AND EXCESS CLAIM OF LOSS FROM HOUSE PROPERTY OF ` 65,230/-. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING SALARY AND OTHER INCOME FILED HI S RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011-12 ON 01.08.201 1 ADMITTING TOTAL INCOME OF ` 28,75,547/-. THE CASE WAS SELECTED FOR SCRUTINY BY CASS AND NOTICE UNDER SECT ION 143(2) WAS ISSUED TO THE ASSESSEE ON 13.08.2012 IN ORDER TO VERIFY THE REASON FOR THE DIFFERENCE OF TDS DECLARE D IN THE RETURN OF INCOME AND FORM 26AS. DURING THE COURSE O F SCRUTINY ASSESSMENT, IT WAS OBSERVED BY THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE HAD DECLARED SA LARY INCOME RECEIVED FROM GAVS TECHNOLOGIES P.LTD., OF RS.31,71,185/- AND OMITTED TO DECLARE THE SALARY RE CEIVED FROM COGNIZANT TECHNOLOGIES SOLUTIONS INDIA PVT.LTD ., OF RS.90,90,394/-. IT WAS ALSO OBSERVED THAT THE ASSE SSEE HAD FAILED TO DISCLOSE HIS INTEREST RECEIPT IN HIS SAVI NGS BANK A/C OF RS.1490/- AND ALSO COMPUTED LOSS FROM HOUSE PROP ERTY WRONGLY TO THE EXTENT OF RS.65,230/-. ACCORDINGLY, THE LEARNED ASSESSING OFFICER MADE ADDITION OF RS.91,57 ,114/- 3 ITA NO.949/MDS/2016 (90,90,394 + 1490 + 65,230) AND FURTHER INITIATED P ENALTY PROCEEDINGS. IN THE PENALTY PROCEEDINGS, IT WAS EX PLAINED BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE OMIS SION TO DISCLOSE SALARY INCOME, INTEREST FROM SAVINGS BANK AND WRONG COMPUTATION OF LOSS FROM HOUSE PROPERTY WERE DUE TO INADVERTENT MISTAKE COMMITTED BY HIS STAFF. HOWEVER , THE LEARNED ASSESSING OFFICER FINDING THE EXPLANATION S UBMITTED BY THE AUTHORIZED REPRESENTATIVE NOT SATISFACTORILY , LEVIED MINIMUM PENALTY OF 100% OF TAX EVADED WHICH WORKED OUT TO RS.30,00,000/- 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) DELETED THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER BY OBSERVING AS UNDER:- 5.1.2 I HAVE CONSIDERED THE FINDINGS GIVEN BY THE AO AND ALSO SUBMISSIONS MADE BY THE AR OF THE APPELLANT. T HE APPELLANT HAD RECEIVED SALARY FROM TWO CONCERNS AS UNDER: TOTAL PAYMENT TDS GAVS TECHNOLOGIES P.LTD. 31,71,185 7,38,164 COGNIZANT TECH.SOLUTIONS 90,90,394 26,86,545 E-FILING RETURN OF INCOME HE HAS SHOWN SALARY INCO ME FROM GAVS TECHNOLOGIES P. LTD. ONLY. SALARY INCOME OF RS.90,90(394/- WAS ADDED TO HIS TOTAL U/S 143(3). THE A.O LEVIED PENALTY U/S 271(1)(C) OF RS.30,00,000/-. THE APPELLANT SUBMITTED THAT ONE OF THE TAX RETURN PREP ARERS 4 ITA NO.949/MDS/2016 WHO USED TO ASSIST ALL THE EMPLOYEES OF THE COMPANY HAS PREPARED AND E-FILED THE RETURN OF INCOME FOR HIM CONSIDERING SALARY INCOME OF THE PRESENT EMPLOYER M /S GAVS TECHNOLOGIES PRIVATE LIMITED AND HAS OMITTED T O CONSIDER THE SALARY RECEIVED AND TAX DEDUCTED FROM THE PREVIOUS EMPLOYER. THE APPELLANT WAS TRAVELLING TO MALAYSIA AND UAE ETC. ON OFFICIAL VISITS AND HENCE COULD NOT VERIFY THE RETURNS FILED BY THE TAX RETURN PREP ARE WHO HELPED ALL THE EMPLOYEES OF THE COMPANY. HOWEVER, O N COMING TO KNOW ABOUT THE OMISSION OF INCOME SALARY INCOME FROM THE PREVIOUS EMPLOYER HE HAS IMMEDIATE LY PAID THE BALANCE TAX PAYABLE OF RS.2,39,320/- ON 25.01.2014 BEFORE THE CONCLUSION OF THE ASSESSMENT PROCEEDINGS AS EVIDENCED BY THE LETTER FILED ON 27.01.2014 ALONG WITH CHALLAN. THE APPELLANT HAS NOT SHOWN SALARY INCOME RECEIVED FROM M/S COGNIZANT TECHNOLOGY SOLUTIONS IN DIA PRIVATE LIMITED OF RS.90,90,394/-. TAX OF RS.26,86, 545/- WAS DEDUCTED AS TDS BY THE EMPLOYER BALANCE TAX PAYABLE WAS RS.2,39,320/- WHICH HE PAID BEFORE COMPLETION OF ASSESSMENT. PENALTY U/S 271(1)(C) IS LEVIED IF THERE IS ANY TAX TO BE EVADED. IN THIS CASE SALA RY INCOME WAS ALREADY SUBJECTED TO TDS. IT IS NOT A CASE WHER E THE APPELLANT HAS WILFULLY FURNISHED INACCURATE PARTICU LARS OR CONCEALED INCOME. THEREFORE, IN MY VIEW THERE IS NE ITHER CONCEALMENT OF INCOME NOR INACCURATE PARTICULARS HA VE BEEN FURNISHED, AS TAX WAS ALREADY DEDUCTED ON SALA RY INCOME. HENCE, I DIRECT THE AO TO DELETE PENALTY U/S 271(1)(C) OF THE IT ACT. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ARGUED I N SUPPORT OF THE ORDER OF THE LD.A.O AND PLEADED TO R EINSTATE HIS ORDER AS THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. 6. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE 5 ITA NO.949/MDS/2016 AUTHORITIES AND FURTHER RELIED IN THE DECISIONS OF THE HONBLE DELHI HIGH COURT IN THE CASE CIT VS. MS. SANIA MIRZ A IN ITA NO.526 OF 2011 DATED 09.02.2012, CIT VS. SOCIETEX IN ITA NO.1190/2011 DATED 19 TH JULY, 2012 AND THE DECISIONS OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE HOTEL MARI NA VS. ACIT IN ITA NO.1197/DEL/2013 DATED 24.04.2015 AND A CIT VS. NATIONAL TEXTTILE CORPORATION LTD. IN ITA NO.5759/DEL/2012 DATED 30.09.2013. HE FURTHER ARGU ED IN SUPPORT OF THE ORDER OF THE LD.CIT(A) AND PRAYED TH AT THE SAME MAY BE SUSTAINED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE, I T IS APPARENT THAT THE ADDITIONS MADE BY THE LEARNED ASSESSING OF FICER IS DUE TO THE INADVERTENT MISTAKE COMMITTED BY THE ASS ESSEES REPRESENTATIVE WHILE FILING THE ASSESSEES RETURN O F INCOME. THE ASSESSEE IS A SALARIED EMPLOYEE AND WAS OFTEN T RAVELLING TO MALAYSIA AND UAE ON OFFICIAL VISIT, WHICH IS NOT DISPUTED BY THE REVENUE. THE ASSESSEE HAS SUBMITTED THAT SINCE HE WAS NOT ABLE TO VERIFY THE E-RETURN FILED BY THE EMPLOY EES OF THE 6 ITA NO.949/MDS/2016 COMPANY WHERE THE ASSESSEE HIMSELF IS EMPLOYED BECA USE OF HIS OFFICIAL OVERSEAS TRAVEL, THIS MISTAKE HAD OCCURRED WHILE FILING THE RETURN OF INCOME. CONSIDERING THES E FACTS AND CIRCUMSTANCES OF THE CASE, AND THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. PRICEWATERHOUSE & COPPERS PVT.LTD., REPORTED IN 348 ITR 306 WHEREIN I T WAS HELD THAT THE PENALTY IS CANNOT BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT FOR A BONAFIDE OR INADVERTENT ERROR MADE IN THE RETURN OF INCOME, WE DO NOT FIND ANY REASON TO INTERFERE W ITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) FOR DELETING THE PENALTY LEVIED BY THE LD.A.O. VARI OUS OTHER DECISIONS CITED BY THE LEARNED AUTHORIZED REPRESENT ATIVE (SUPRA) ALSO SUPPORT THE CASE OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 2 ND DECEMBER , 2016 SD/- SD/- ( ! ' . # ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, 7 ITA NO.949/MDS/2016 ( /DATED 2 ND DECEMBER, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF