Gourav Goenka, Kolkata V. ACIT, Circle - 29, Kolkata, Kolkata

ITA 981/KOL/2011

• Counselvise Citation: 98123514 RSA 2011
• Duration Of Justice: 42 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2012
• Appeal Filed By: Assessee
• Assessment Year: misc
• Appeal Filed On: 01-01-1970
• Court: TRIBUNAL
• Department Lawyers: R K SAHA
• Assessee Lawyers: B C JAIN
• Keywords: Revised return
• Section: 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B , KOLKATA [ . .. . , ,, , . .. .!' !'!' !'. .. . , , , , #$ ] [BEFORE SHRI N.VIJAYAKUMARAN , JUDICIAL MEMBER & SRI C.D.RAO , ACCOUNTANT MEMBER] % % % % / ITA NO. 981/(KOL) OF 2011 &' ()/ ASSESSMENT YEAR : 2007-08 SHRI GOURAV GOENKA, KOLKATA (PAN: ADGPG 6342 Q) A.C.I.T., CIRCLE-29, KOLKATA (,- / APPELLANT ) - - VERSUS - (01,-/ RESPONDENT ) ,- 2 3 #/ FOR THE APPELLANTS: / SHRI B.C.JAIN 01,- 2 3 #/ FOR THE RESPONDENT: / SHRI R.K.SAHA 4 2 '$ /DATE OF HEARING : 15.02.2012. 5( 2 '$ /DATE OF PRONOUNCEMENT : 22.03.2012. #6 / ORDER # # # # . .. .!' !'!' !'. .. . , , , , #$ PER C.D.RAO, AM THE ABOVE APPEAL FILED BY THE ASSESSEE IS AGAINST O RDER OF THE LD. C.I.T-(A)- XVI, KOLKATA DATED 21.01.2011 RELATING TO ASSESSMEN T YEAR 2007-08. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS A PPEAL IS RELATING TO CONFIRMATION OF IMPOSITION OF PENALTY U/S 271(1)(C) OF THE I.T A CT. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE AO H AS LEVIED PENALTY U/S 271(1)(C) OF THE I.T.ACT BY OBSERVING THAT THE ASSESSEE IS FULLY AWARE OF THE FACT THAT HE HAS FURNISHED INACCURATE PARTICULARS TO THE DEPARTMENT TO THE EFFECT THAT HE CLAIMED THE INTEREST PAID ON HOUSE ADVANCE AGAINST INTEREST INC OME EARNED INSTEAD OF CLAIMING THE SAME UNDER THE HEAD HOUSE PROPERTY INCOME. HE FURTH ER POINTED OUT THAT WHEN IT WAS DETECTED BY THE DEPARTMENT THEN ONLY THE ASSESSEE H AS COME FORWARD AND THEREFORE IT 2 WAS CLEARLY FILING OF INACCURATE PARTICULARS WITH AN INTENTION OF MISGUIDE THE REVENUE AUTHORITIES. THEREFORE, THE AO AFTER DISTINGUISHING THE CASE OF CIT VS RELIANCE PETROPRODUCTS (P) LTD (2010) 322 ITR 158 (SC) AND D ILIP N.SHROFF VS JCIT (2007) 291 ITR 519 (SC) HAS HELD THAT THERE WAS INACCURATE PARTICULARS IN THIS CASE AND PENALTY IS LEVIABLE U/S 271(1)(C) OF THE I.T.ACT. 3.1. ON APPEAL THE LD. CIT(A) HAS CONFIRMED THE SAM E BY OBSERVING AS UNDER :- 3.1 I HAVE CAREFULLY CONSIDERED THE FACTS NARRATED BY THE A.O. AND SUBMISSION MADE BEFORE ME ON BEHALF OF THE APPELLANT. IN THIS CASE THE FACTS NARRATED BY THE AO SUGGEST THAT THE APPELLANT HAS NOT VOLUNTARILY MADE ANY DIS CLOSURE BEFORE A.O. IT WAS IN THE KNOWLEDGE OF A.O., THAT THE CLAIM MADE BY APPELLANT IS NOT PROPER. THEREFORE THE CLAIM OF THE APPELLANT THAT DISCLOSURE WAS VOLUNTAR Y AND THERE WAS NO MALAFIDE INTENTION DOES NOT SEEMS TO BE PROPER. THE CONTENTI ON OF APPELLANT IS THAT ADDITION ITSELF IS RESULT OF VOLUNTARY DECLARATION/ADMISSION BY APPELLANT. WHEREAS AO. HAS EMPHASIZED THAT DELETION IS FIRST AND ADMISSION IS MERELY TO COVER UP INACCURATE PARTICULARS OF INCOME BY APPELLANT. AFTER CAREFUL C ONSIDERATION OF FACTS NARRATED BY AO. AND APPELLANT, I CONCLUDE THAT THE ACT OF APPEL LANT WAS VERY LATE, AT LEAST IT MIGHT HAVE BEEN IMMEDIATELY AFTER RECEIVING NOTICE ISSUED BY A.O. 3.2 IN THIS CASE ADMISSION OF DISCREPANCY BY FILIN G A LETTER HAS COME AFTER THE DETECTION AND THEREFORE FILING A LETTER OR EVEN FIL ING REVISED RETURN WILL NOT ABSOLVE THE APPELLANT FROM PENALTY U/S. 271(1)(C). THEREFORE VI EW TAKEN BY THE A.O. IN VIEW OF, UDAICHAND SANTOSH KUMAR JAIN VS. ITO (2003) 131 TAX MAN 184 (MAG), CIT VS. GLAMOUR RESTAURANT [2003] 80 TTS (MUM) 763, MAN MOH AN GUPTA VS. CIT [2004] 189 CTR (RAJ) 331 AND CIT VS. LAD DEVI KOTHARI [200 5) 97 TTJ (JP) 421 THAT EVEN IN CASES WHERE REVISED COMPUTATION/RETURN IS FILED DUR ING ASSESSMENT PROCEEDINGS, APPELLANT CAN NOT BE ABSOLVE FROM HIS RESPONSIBILIT Y U/S. 271(L)(C). ACTION OF A.O. IS THEREFORE, UPHELD. THE APPEAL FILED BY THE APPELLAN T IS DISMISSED. 3.2. AGGRIEVED BY THIS ASSESSEE IS IN FURTHER APPEA L BEFORE US. 4. AT THE TIME OF HEARING THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES AND FURTHER SUBMITTED THAT THE ABOVE ADDITION HAVE BEEN MADE BY THE LD. A SSESSING OFFICER WITHOUT PROPER BASIS, REASON OR JUSTIFICATION. ACCORDING TO THE PE NALTY ORDER U/S 271(1)(C) DT 24.12.2009 POINT NO.2 LAST THREE LINES INDICATE THA T ASSESSEE DID NOT APPEAR ON 28.08.09 FOR WHICH SEPARATE PENALTY U/S 271(1)(B) HAS BEEN I MPOSED & THE SAME HAS BEEN DROPPED BY THE CIT(A) DURING THE HEARING. 4.1. HE FURTHER SUBMITTED THAT RS.8 LACS HAVE BEEN VOLUNTARILY OFFERED FOR TAXATION & THE DUE TAXES WERE DULY PAID BY THE ASSESSEE DURI NG THE COURSE OF HEARING. COPY OF 3 CHALLAN FOR THE PAYMENT OF TAX HAS BEEN ENCLOSED IN THE PAPER BOOK FILED IN PAGE NO.13. IN SUBSEQUENT YEAR I.E. IN AY 2008-09 SAME ISSUE AR ISES & THE LD. ASSESSING OFFICER HAVE DROPPED THE PENALTY PROCEEDING INITIATED U/S 2 71(I)(C) AFTER CONSIDERING THE SUBMISSION MADE BY THE ASSESSEE COPY OF THE SUBMISS ION BEFORE THE LD. ASSESSING OFFICER & CERTIFIED COPY OF ORDER SHEET HAVE BEEN E NCLOSED AT THE PB NO.18 & 20 RESPECTIVELY IN PAPER BOOK FILED. FURTHER HE SUBMIT TED THAT THE FINDINGS OF THE LD. ASSESSING OFFICER IN ORDER U/S 271(1)(C) PAGE-3 3RD PARA THAT ASSESSEE CAMOUFLAGED THE INTEREST OF RS. 8 LACS IS TOTALLY INCORRECT BECAUSE ASSESSEE HAD SUBMITTED THE DETAILED BREAK UP OF INTEREST RECEIVED & PAID BEFORE THE LD. ASSESSING OFFICER WHICH IS ALSO A PART OF PAPER BOOK FILED INDICATING PAGE NO 7,8 & 9 . ACCORDING TO THE ORDER U/S 271(1)(C) PAGE-2, SL NO.4, ON 03.12.2009 NO ONE APP EARED WHEREAS A/R OF THE APPELLANT HAD SUBMITTED CERTAIN PAPER ASKED BY THE LD. ASSESS ING OFFICER ON 03.12.2009 COPY OF WHICH HAVE BEEN ENCLOSED IN THE PAPER BOOK PAGE NO. 7. 4.2. HE FURTHER SUBMITTED THAT AS PER THE ORDER OF THE LD. ASSESSING OFFICER U/S 271(I)(C) PAGE-2, SL NO.5, NO ONE APPEARED ON 16.12 .2009 WHEREAS AS PER THE ORDER U/S 143(3) PAGE-1 DATES OF HEARING FIXED IS ONLY 10.08. 2009, 04.12.2009 & 22.12.2009. SO 16. 12.2009 IS NOT THE DATE OF HEARING AS CLEARLY E VIDENT FROM THE ORDER ITSELF. 4.3. FURTHER IT IS SUBMITTED THAT ASSESSEE DID NOT INTENTIONALLY CLAIMED THE DEDUCTION OF RS.8 LACS BECAUSE IN THE SUBSEQUENT ASSESSMENT Y EAR I.E. IN AY 2008-09 ASSESSEE HAD AGAIN CLAIMED EXCESS DEDUCTION WHICH WAS DISALL OWED DURING THE PROCEEDING U/S 143(3) BECAUSE THE RETURN OF AY 08-09 WAS FILED ON 31.07.2008 WHEREAS ORDER FOR AY 2007-08 WAS PASSED ON 24.12.2009. 4.4. RELIANCE IS PLACED ON SUPREME COURT JUDGMENT I N THE CASE OF CIT VS. RELIANCE PERTOPRODUCTS {20 10,333 ITR 1 58} FROM WH ERE IT IS CLEAR THAT MERE MAKING OF CLAIM WHICH IS NOT SUSTAINABLE IN L AW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE 4.5. HE SUBMITTED THAT ACCORDING TO THE RECENT DECI SION OF HIGH COURT IN THE CASE OF CIT VS. BRAHMAPUTRA CONSORTIUM LTD. SUBMITTING INAC CURATE CLAIM WOULD NOT AMOUNT 4 INACCURATE PARTICULARS. IN THE LIGHT OF THE ABOVE I T IS CLEARLY EVIDENT THAT IT WAS NOT THE INTENTION OF THE ASSESSEE TO EVADE TAX IT IS MERELY A INCORRECT CLAIM. THEREFORE HE REQUESTED TO SET ASIDE ORDERS OF THE REVENUE AUTHOR ITIES AND DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE IT ACT. 5. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, FROM THE ORIGINAL COMPUTATION OF INCOME FILED BY THE ASSESSEE THE ASSESSEE HAS CLAIMED INTEREST PAID WITHOUT MENTIONI NG THE PURPOSE FOR WHICH THE INTEREST PAID AMOUNTING TO RS.8 LAKHS AGAINST INTER EST ON LOAN OF RS.8,63,117/- UNDER THE HEAD INCOME FORM OTHER SOURCES WHICH IS AS UN DER :- INCOME FROM OTHER SOURCES INTEREST OTHER INTEREST INTEREST ON LOAN 863117 863117 863 117 LESS: DEDUCTIONS OTHERS BANK CHARGES 6911 INTEREST PAID 8 00000 LEGAL CHARGES 28224 835135 835135 27982 REMARK: DIVIDEND INCOME OF RS.140764/- IS EXEMPTED U/S 10(33) AND THE RETURN WAS FILED ON 17.03.2008 AND SCRUTINY ASSESSMENT PROCEEDINGS FOR THE SAID ASSESSMENT YEAR HAS COMMENCED ON 18.09.2008 BY ISSUING OF NOTICE U/S 143 (2) OF THE I.T.ACT. IT IS ALSO TO BE NOTED THAT NOTICE U/S 142(1) OF THE IT ACT ISSUED ON 10.08.2009 FIXING THE DATE OF HEARING ON 28.08.2009 AND REQUIRING CERTAIN DETAILS FROM THE ASSESSEE. BUT NO COMPLIANCE IS MADE TO SUCH NOT ICE AND ASSESSEE HAS APPEARED ONLY ON 4.12.2009 AND NO REASONS GIVEN BY THE ASSES SEE FOR SUCH LONG PERIOD OF NON- COMPLIANCE. DURING THE ASSESSMENT PROCEEDINGS WHEN THE AO HAS OBSERVED THAT THE ASSESSEE HAS CLAIMED THE INTEREST EXPENDITURE AMOUN TING TO RS.8,00,000/- AGAINST INCOME FORM OTHER SOURCES THEN THE ASSESSEE HAS REV IVED HIS COMPUTATION OF INCOME CLAIMED ONLY RS.1,50,000/- AGAINST THE INCOME FROM HOUSE PROPERTY STATING THAT HOUSE PROPERTY HAS BEEN SELF OCCUPIED. AT THIS JUNCTURE I T IS RELEVANT TO POINT OUT THAT FOR THE 5 IMMEDIATELY SUBSEQUENT ASSESSMENT ASSESSMENT YEAR 2 008-09 WHICH WAS FILED BY THE ASSESSEE ON 31.07.2008 BY CLAIMING INTEREST ON HOUS E LOAN OF RS.1,50,000/- AGAINST THE HOUSE PROPERTY INCOME. THIS INDICATES THAT THE ASSE SSEE IS WELL AWARE EVEN ON 31.07.2008 THAT WHEN HE HAS FILED THE RETURN FOR A. YR. 2008-09 HE SHOULD CLAIM ONLY RS.1,50,000/- AS INTEREST UNDER THE HEAD INCOME FRO M HOUSE PROPERTY. BUT WHEREAS IN THIS CASE HE REVISED THE COMPUTATION OF INCOME ONLY AFTER DETECTION OF THE REVENUE AUTHORITIES. THEREFORE, IN OUR CONSIDERED OPINION, THIS WILL BE A FIT CASE FOR LEVYING PENALTY U/S 271(1)(C) OF THE IT ACT. THEREFORE WE F IND NO INFIRMITY IN THE ORDERS OF THE REVENUE AUTHORITIES IN LEVYING OF PENALTY U/S 271(1 )(C) OF THE IT ACT. WE CONFIRM THE SAME AND DISMISS THE APPEAL OF ASSESSEE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 22.03.2012. SD/- SD/- . .. . , , , , & & & & N.VIJAYAKUMARAN, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE:22.03.2012. #6 2 0&& 7#(8- COPY OF THE ORDER FORWARDED TO: 1. SHRI GOURAV GOENKA, 5, HASTINGS PARK ROAD, KOLKA TA-700027. 2. A.C.I.T., CIRCLE-29, KOLKATA 3. CIT- 4. CIT(A)-XVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 1 0&/ TRUE COPY, #6/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.) 6