MAHESH J. GODSE, PUNE v. ITO 26(2)(3), MUMBAI

ITA 1571/MUM/2010 | 2003-2004
Pronouncement Date: 09-12-2011 | Result: Allowed

Appeal Details

RSA Number 157119914 RSA 2010
Assessee PAN AABPG2409E
Bench Mumbai
Appeal Number ITA 1571/MUM/2010
Duration Of Justice 1 year(s) 9 month(s) 12 day(s)
Appellant MAHESH J. GODSE, PUNE
Respondent ITO 26(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 09-12-2011
Date Of Final Hearing 01-12-2011
Next Hearing Date 01-12-2011
Assessment Year 2003-2004
Appeal Filed On 26-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND B.RAMAKOTAIAH(A. M ) ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) MAHESH J.GODSE FLAT NO.81 BUILDING NO.10 MORESHWAR KRUPA CHS VEERSAVARKAR MARG BHANDUP MUMBAI-400078 PAN:AABPG2409E INCOME TAX OFFICER WARD-26(2)(3) MUMBAI-400002. APPELLANT V/S RESPONDENT DATE OF HEARING : 1.12.2011 DATE OF PRONOUNCEMENT : 9.12.2011 APPELLANT BY : SHRI PRAKASH PANDIT RESPONDENT BY : SHRI D.S.SUNDER SINGH O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.12.2009 PASSED BY THE L D. CIT(A) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN EMPLOYEE OF BHARAT PETROLEUM CORPORATION LTD. (BPCL). IT WAS INTERALIA OBSERVE D BY THE AO THAT THE ASSESSEE FILED RETURN OF INCOME A T AN INCOME OF RS.5 82 953/-AS PER TDS SALARY CERTIFI CATE ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 2 IN FORM NO.16 AND DID NOT DISCLOSE THE LEASE RENT A ND MAINTENANCE CHARGES RECEIVED DURING THE RELEVANT PREVIOUS YEAR. THE AO FURTHER OBSERVED THAT THE ASSESSEE ON THE OTHER HAND CLAIMED INTEREST PAID ON LOAN TAKEN FOR ACQUISITION OF HOUSE PROPERTY AS SO P AND HAS SHOWN LOSS UNDER THE HEAD HOUSE PROPERTY. THE AO AFTER RECORDING THE REASONS ISSUED NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT 1961 (THE ACT). IN RESPONSE TO THE NOTICE U/S 148 OF THE AC T DATED 26.3.2008 THE ASSESSEE FILED REVISED RETURN OF INCOME ON 13.4.2007 DECLARING TOTAL INCOME OF RS.7 36 040/-. HOWEVER THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.7 53 210/- VIDE ORDER DATED 21.11.2008 PASSED U/S 144 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)( C ) OF THE ACT. IN RESPONSE TO THE NOTICE ISSUED TO S HOW CAUSE AS TO WHY THE PENALTY UNDER SECTION 271(1)(C ) SHOULD NOT BE IMPOSED THE AO OBSERVED THAT THE ASSESSEE FAILED TO MENTION ANY SATISFACTORY EXPLANATION ABOUT ANY REASONABLE CAUSE FOR NOT OFFERING THESE RECEIPTS AS INCOME. THE AO ON THE BA SIS OF THE ADDITION MADE IN THE ASSESSMENT ORDER HELD T HAT ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 3 THE ASSESSEE HAS CONCEALED THE INCOME OF RS.2 12 135/- (NET INCOME FROM HOUSE PROPERTY RS.2 00 175/- + INCOME FROM OTHER SOURCES I.E. RECEIPT OF REIMBURSEMENT OF ANNUAL MAINTENANCE CHARGES OF RS.12 960/-) AND ACCORDINGLY HE IMPOSED THE PENALTY OF RS.44 139/- VIDE ORDER DATED 15.5.2009 PASSED UNDER SECTION 271(1)(C) OF THE A CT. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE AGREEING WITH THE VIEWS OF THE AO AND IN RELYING ON THE DECISION OF THE HONBLE SUPREME COUR T IN UNION OF INDIA AND ORS V/S DHARMENDRA TEXTILES PROCESSORS AND OTHERS 306 ITR 277(SC) CONFIRMED THE PENALTY IMPOSED BY THE AO. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A) THE ASSESSEE IS I N APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTENANCE OF THE PENALTY IMPOSED BY THE AO UNDER SECTION 271(1)( C ) OF THE ACT. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE IMPUGNED ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS: ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 4 S.NO. ITA NO. CASE TITLE A.Y DATE OF ORDER 1 5879/MUM/2009 MR.MANGHAL GAONKAR & ORS. V/S ITO 2003-04 27.8.2010 2 2369/MUM/2010 SHRI ASHOK JADHAV V/S DCIT 2002-03 23.2.2011 3 3569/MUM/2009 MRS.SYBIL LOBO V/S ITO 2004-05 11.3.2011 4 2828/MUM/2008 SHRI RAVINDRA LAXMAN SATHE V/S ITO 2001-02 22.12.2009 5 5986 TO 5988/ MUM/2009 SMT.VERONICA J.CORREIA V/S ITO 2002-03 TO 2004-05 30.6.2010 6 1922 TO 1925 /MUM/2010 SHRI ADRIAN J AUGUSTINE V/S ITO 2001-02 TO 2004-05 7.1.2011 7 1595/MUM/2010 MR.KESHAVAN P.PILLAY V/S ITO 2003-04 12.1.2011 8 1606 1572 & 1574/MUM/2010 WINSTON I RODRIGUES V/S ITO 2001-02 2002-03 & 2004-05 7.1.2011 9 1708/MUM/2010 SHAILESH R PRAJAPATI V/S ITO 2003-04 28.1.2011 10 1931/MUM/2010 & 1932/MUM/2010 MR.DILIP NARAYAN PATHAK & OTHERS V/S ITO 2002-03 18.2.2011 11 1918 TO 1921 /MUM/2010 CHANDRAKANT K. MAHADKAR V/S ITO 2001-02 TO 2004-05 11.2.2011 HE ALSO PLACED ON RECORD THE COPY OF THE ORDERS AS MENTIONED ABOVE. HE THEREFORE SUBMITS THAT THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) BE DELETED. ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 5 5. ON THE OTHER HAND THE LEARNED D.R. SUPPORTS THE ORDER OF THE OF THE AO AND THE LEARNED COMMISSIONER OF INCOME TAX (A). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ISSUE STANDS COVE RED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE CONSISTENT VIEW OF THE CO-ORDINATE BENCHES OF THE TRIBUNAL WHEREIN IT HAS BEEN HELD THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THERE IS NO CONCEALMENT ON THE PART OF THE ASSESSEE. 7. ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE IN SUNIL MADHUKAR JOSHI V/S ITO IN ITA NO.2829/MUM/2008 FOR A.Y. 2001-02 ORDER DATED 1.02.2010 IN WHICH ONE OF US (JM) WAS A PARTY WHERE IN IT HAS BEEN HELD VIDE PARA 6 OF THE ORDER AS UNDER :- 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NO T IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE TRIBUNAL IN THE CASE OF SHRI RAVINDRA LAXMAN SATHE(SUPRA) ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE HAS DELETED THE PENALTY ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 6 VIDE FINDING RECORDED IN PARA 4.2 OF ITS ORDER DATE D 22.12.2009 WHICH IS REPRODUCED AS UNDER : 4.2 ON CONSIDERATION OF ABOVE DISCUSSION AND RATIO LAID DOWN BY THE ITAT IN THE SAID CASE CITED SUPRA WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C). FROM THE ABOVE CIRCULAR IT IS CLEAR THAT IN THE CASE UNDER CONSIDERATION THE AO HAS DISCHARGED HIS DUTY OF ASSESSING CORRECT INCOME ON THE BASIS OF PARTICULARS AVAILABLE WITH THE DEPARTMENT WHICH MAY BE BY ISSUING NOTICE U/S 148 OF THE ACT. THE ASSESSEE CLAIMED THE INTEREST ON BORROWED CAPITAL AGAINST SOP INCOME AND OTHERS WHETHER THE SAME IS ALLOWABLE OR NOT OR WHAT SHOULD BE THE CORRECT INCOME IN ACCORDANCE WITH THE ACT IS A DIFFERENT THING BUT CERTAINLY RELEVANT SUFFICIENT PARTICULARS WERE ON RECORD EITHER IN THE FILE OF ASSESSEE FORM 16 OR IN THE FILE OF BPCL. THE AO MUST HAVE CONSIDERED THE RELEVANT SCHEME AND ALL MATERIAL IN ASSESSMENT OF BPCL. UNDER THE PECULIAR CIRCUMSTANCES SUCH CONSIDERATION OF PARTICULARS IN THE CASE OF BPCL AMOUNTS PARTICULARS AVAILABLE ON RECORD IN CASES OF THE EMPLOYEES OF BPCL. THEREFORE SUCH CASES CANNOT BE SAID TO BE A CASE OF FURNISHING INACCURATE PARTICULARS OR INCOME OR CONCEALING OF ANY PARTICULARS OF INCOME PARTICULARLY WHEN ALL THE RELEVANT PARTICULARS/MATERIAL AVAILABLE WITH THE DEPARTMENT. FURTHER IT HAS BEEN NOTICED FROM PENALTY ORDER THAT THE AO NOTED THAT EMPLOYEES IN A LARGE SCALE HAD FILED RETURNS OF INCOME AS PER TDS SALARY CERTIFICATE IN FORM NO. 16 AND HAD NOT DISCLOSED LEASE RENT & MAINTENANCE CHARGES RECEIVED INCLUDING ASSESSEE. WHEN A LARGE NUMBER OF PERSONS FILED THEIR RETURNS OF INCOME BY SAME MISTAKE THAT MISTAKE CANNOT BE SAID TO BE A CASE WHERE PENALTY PROVISIONS U/S 271(1)(C) IS APPLICABLE CONTRARY IT SUPPORTS TO ASSESSEES BONAFIDE. ITA NO.1571/MUM/2010 (ASSESSMENT YEAR: 2003-04) 7 IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) HOLD THAT UNDER THE PECULIAR FACTS AND CIRCUMSTANCES THERE IS NO CONCEALMENT ON PART OF THE ASSESSEE AND ACCORDINGLY THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL WE CANCEL THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A). THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. 8. IN THE RESULT ASSESSEES APPEAL STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 9TH DEC. 201 1. SD S D (B. RAMAKOTAIAH ) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 9TH DECEMBER 2011 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI