SONALI SUBODH PETHE,THANE V. ASSESSING OFFICER, NFAC, DELHI, THANE

ITA 89/MUM/2025

AI Insights

The case involves Sonali Subodh Pethe, the appellant, contesting a penalty of Rs. 7,78,513 levied by the Assessing Officer (AO) under section 270A of the Income Tax Act, 1961, for alleged under-reporting of income in the assessment year 2017-18. The penalty was based on the disallowance of part of the interest expenditure claimed under section 57(iii). The appellant argued that the income was not under-reported and sought immunity under section 270AA, having deposited the entire tax and interest within the prescribed time, albeit filing Form No. 68 late. The CIT(A) upheld the penalty, leading to the appeal before the Tribunal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 473520 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Other Referred Cases: Punam Kanwar Bhati vs ITO (2024) 165 taxmann.com 286 (Jodhpur)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONIKA H. PANDE
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Procedural lapse
• Section: 143(3); 143(1); 2; 270AA

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “B”, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER ITA No. 89/Mum/2025 Assessment Year 2017-18 Sonali Subodh Pethe Flat No. 1100, 11th Floor, Lodha Aristo, Majiwada, Thane (West), Maharashtra-400602. PAN: AEXPP 4031 K Vs. ACIT, Circle – 3, Thane, Ashar IT Park, Maharashtra-400604. (Appellant) (Respondent) Present for: Assessee by : Shri Subodh Ratnaparkhi Revenue by : Ms. Monika H. Pande, Sr. DR Date of Hearing : 18.02.2025 Date of Pronouncement : 25.02.2025 O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: The appeal of the assessee for the assessment year 2017-18 is directed against the order dated 11.11.2024 passed by the National Faceless Appeal Centre (NFAC), Delhi. The assessee has raised the following grounds of appeal: “1. The Hon. CIT(A) erred in upholding the penalty of Rs. 7,78,513/- levied u/s 270A of the I.T. Act, 1961 holding the appellant to have under reported his income due to disallowance of part interest expenditure claimed u/s 57(iii) not appreciating that the said income did not constitute under reported income and that levy of penalty u/s 270A was not justified. The penalty of Rs. 7,78,513/- levied u/s 270A of the I.T. Act being not warranted by facts and in law may please be cancelled. 2. The Hon. CIT(A) erred in not granting to the appellant, immunity as provided u/s 270AA of the I.T. Act, 1961, inspite of the appellant depositing the entire tax and interest payable within the prescribed time ITA No. 89/Mum/2025 Sonali Subodh Pethe A.Y. 2017-18 2 limit, not preferring appeal against the assessment order and making application in Form 68 though delayed. 3. The appellant craves leave to add, alter, amend and/or vary any of the ground at any time before the decision of the appeal.” 2. Fact in brief is that assessment u/s 143(3) of the Act for the A.Y. 2017-18 was finalized on 12.12.2019 and total income was assessed at Rs. 1,27,87,686/-. In the assessment order, the assessing officer has disallowed claim of deduction of interest u/s 57(iii) of the Act to the amount of Rs. 32,08,266/-, out of the total claim of Rs. 55,36,383/- made by the assessee. 3. Thereafter, the assessing officer has levied penalty u/s 270A of the Act holding that assessed income was greater than the income determined in the return of income processed u/s 143(1) of the Act. The AO considered that assessee had under-reported his income, therefore, penalty of Rs. 7,78,513/- being 50% of tax on under- reported income was levied. 4. The assessee filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee after reiterating the fact reported by the assessing officer that assessee has not filed Form No. 68 with the time period as prescribed in sub-section 2 of section 270AA of the Act. 5. During the course of appellate proceedings before us, the ld. Counsel vehemently contended that assessee has paid the taxes along with interest as per demand notice within stipulated time of one month from the date of assessment order. Therefore, the assessing officer was not justified in not providing immunity to the assessee u/s 270AA of the Act. He further submitted that just on the ITA No. 89/Mum/2025 Sonali Subodh Pethe A.Y. 2017-18 3 basis of technical error in filing the Form N. 68, the lower authority is not correct in levying the impugned penalty. 6. The ld. Counsel has also referred the judicial pronouncement of the ITAT Benches as placed in the paper book. On the other hand, the ld. DR supported the order of lower authorities. 7. Heard both the sides and perused the material on record. During the course of assessment, the assessee has taken loan of Rs. 8,82,90,540/- from M/s. Edelweiss Retails Finance Ltd. and out of this loan amount of Rs. 1,45,44,606/- was advanced by the assessee to M/s. Waman Hari Pethe Sons P Ltd. The assessee has paid interest of Rs. 85,40,413/- on the loan received from M/s. Edelweiss Retails Finance Ltd. and received interest of Rs. 54,05,179/- on amount of loan advanced to M/s. Waman Hari Pethe Sons P Ltd. The rate of interest on the loan obtained and taken were 18% and 13% respectively. Out of total interest paid of Rs. 85,40,413/-, the assessee has claimed Rs. 55,36,383/- as deduction u/s 57(iii) of the Act. However, the assessing officer has restricted the claim of deduction to the extent of Rs. 14,06,606/- on the ground that whole amount of interest cannot be claimed to be attributable to the loan taken by the assessee since assessee has utilized only 16.47% of loan obtained for further giving loan to M/s. Waman Hari Pethe Sons P Ltd. Consequently, the assessing officer has levied penalty u/s 270A of the Act for under-reporting of income to the amount of Rs. 7,78,513/-. The assessee has paid tax along with interest as per demand notice received within one month from the date of assessment order. However, assessee could not upload the Form No. 68 within the time period for getting immunity of penalty. The lower ITA No. 89/Mum/2025 Sonali Subodh Pethe A.Y. 2017-18 4 authority has not granted the immunity u/s 270AA of the Act for the reason that application in Form No. 68 was filed beyond the time period prescribed u/s 270AA of the Act. We have perused the decision of ITAT in the case of Punam Kanwar Bhati vs ITO (2024) 165 taxmann.com 286 (Jodhpur) wherein held that delay in filing Form No. 68 was only a procedural lapse and not substantive failure and held that assessee was entitled for immunity u/s 270AA of the Act. The assessee has fulfilled all major conditions of payment of tax with interest in time and also not filed any appeal against the assessment order. However, the assessee could not upload the Form No. 68 seeking immunity from levying penalty u/s 270AA as the assessment year 2017-18 was the first year requiring to upload the Form No. 68. Since the assessee has paid the tax demand along with interest within 30 days from receipt of demand notice and uploading of Form No. 68 was recently introduced during the year under consideration, therefore, the ground no. 2 of the assessee for condoning the impugned penalty u/s 270A is allowed. The ground no. 1 filed by the assessee become academic not required adjudication. Accordingly, the appeal of the assessee is allowed. 8. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 25.02.2025. Sd/- Sd/- (ANIKESH BANERJEE) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 25.02.2025 Biswajit, Sr. P.S. ITA No. 89/Mum/2025 Sonali Subodh Pethe A.Y. 2017-18 5 Copy to: 1. The Appellant: 2. The Respondent: 3. The CIT, 4. The DR //True Copy// [ By Order Assistant Registrar ITAT, Mumbai Benches, Mumbai "