RAJESH V. GAD, MUMBAI v. ITO 26(2)(3), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI R.S. SYAL (AM) & SHRI R.S. PADVEKAR (J M) I.T.A.NO.1931/MUM/2010 (A.Y. 2002-03) SHRI DILIP NARAYAN PHATAK C/O. MR. D.Y.PABNDIT ADVOCATE 1187/10 KRUPA SHIVAJI NAGAR PUNE-411 055. PAN: AADPP3407D VS. INCOME-TAX OFFICER-26(2)(3) MUMBAI. APPELLANT RESPONDENT I.T.A.NO.1932/MUM/2010 (A.Y. 2002-03) SHRI RAJESH V. GAD C/O. MR. D.Y.PABNDIT ADVOCATE 1187/10 KRUPA SHIVAJI NAGAR PUNE-411 055. PAN: ACQPG8914M VS. INCOME-TAX OFFICER-26(2)(3) MUMBAI. APPELLANT RESPONDENT APPELLANTS BY SHRI Y.P. PANDIT. RESPONDENT BY SHRI JI TENDRA YADAV. O R D E R PER R.S. SYAL AM : THESE TWO APPEALS BY TWO DIFFERENT ASSESSEES ARE D IRECTED AGAINST THE ORDERS PASSED BY THE LD. CIT(A) UPHOLDING PENALTY U /S 271(1)(C) IN RELATION TO THE ASSTT. YEAR 2002-03. SINCE COMMON ISSUES ARE RA ISED IN BOTH THE APPEALS WE ARE THEREFORE PROCEEDING TO DISPOSE THEM OF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE APPEAL BY SHRI DILIP PHATAK IS TIME-BARRED B Y 146 DAYS. THE APPEAL BY SHRI RAJESH GAD IS DELAYED BY 20 DAYS. THE LD. A.R. COMMON TO BOTH THE ASSESSES EXPLAINED THE REASONS FOR THE DELAY AND ALSO FILED AFFIDAVIT IN THIS ITA NOS. 1931-1932/M/10 - DILIP PHATAK & ANR. 2 REGARD. NO SERIOUS OBJECTION WAS RAISED BY THE LD. DR ON CONDONATION OF DELAY BECAUSE IN OTHER CASES OF THE SAME NATURE THE TRIB UNAL HAS ALREADY CONDONED THE DELAYS. AFTER CONSIDERING THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL BEFORE US WE CONDONE THE DELAY AND ADMIT THESE APPEALS FOR DI SPOSAL ON MERITS. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT SHRI D ILIP PHATAK THE ASSESSEE IN THE PRESENT CASE WAS WORKING IN BHARAT PETROLEUM C ORPORATION LTD. AT THE MATERIAL TIME. CERTAIN SELF-LEASE ARRANGEMENT WAS IMPLEMENTED BY THE COMPANY PURSUANT TO WAGE NEGOTIATIONS HELD BY AND BETWEEN T HE COMPANY AND EMPLOYEES UNION AND LEASE RENT WAS PAID IN LIEU OF HRA. THE C OMPANY TREATED THE SAID PAYMENT AS IF PROVIDING RENT-FREE ACCOMMODATION AND CALCULATED THE VALUE OF PERQUISITE AS PER INCOME-TAX RULES. THE RETURN WAS FILED ACCORDINGLY. HOWEVER THE AO TAXED THE RENT GIVEN BY THE EMPLOYER AS INC OME FROM HOUSE PROPERTY BUT DID NOT EXCLUDE THE VALUE OF PERQUISITE ALREADY TAKEN INTO COMPUTATION BY THE EMPLOYER. DEMAND WAS RAISED. THE ASSESSEE DID NOT O BJECT TO THE ASSESSMENT MADE AND PAID THE TAXES. SUBSEQUENTLY PENALTY CAME TO BE IMPOSED WHICH HAS BEEN UPHELD BY THE LD. CIT(A) IN THE PRESENT APPEAL . THE FACTS IN THE CASE OF SHRI RAJESH GAD ARE MUTATIS MUTANDIS SIMILAR TO THOSE DI SCUSSED ABOVE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT THE FACTS AND CIRCUMSTA NCES OF THESE APPEALS ARE SIMILAR TO THOSE DISPOSED OF BY THE TRIBUNAL IN SEV ERAL CASES COPIES OF SOME OF WHICH HAVE BEEN PLACED ON RECORD. ONE OF SUCH ORD ER IN THE CASE OF SHRI ADRIAN JOHN AUGUSTINE VS. ITO PASSED BY THIS VERY COMBINAT ION IS AVAILABLE ON RECORD. IN ALL SUCH CASES THE TRIBUNAL HAS ORDERED FOR THE DE LETION OF PENALTY U/S 271(1). IN THE ABSENCE OF ANY DISTINGUISHING FEATURE HAVING BEEN BROUGHT TO OUR NOTICE ITA NOS. 1931-1932/M/10 - DILIP PHATAK & ANR. 3 BY THE LD. D.R. FOLLOWING THE PRECEDENTS WE OVER TURN THE IMPUGNED ORDERS AND ORDER FOR THE DELETION OF THE PENALTY IN BOTH THE C ASES. 5. IN THE RESULT BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED ON THE 18TH DAY OF FEBRUARY 2011. SD/- SD/- (R.S. PADVEKAR) (R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 18TH FEBRUARY 2011. NG: COPY TO : 1. ASSESSEES. 2.DEPARTMENT. 3 CIT(A)-XXVI MUMBAI. 4 CIT MUMBAI CITY-26 MUMBAI. 5.DR D BENCH MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER ASST.REGISTRAR ITAT MUMBAI. ITA NOS. 1931-1932/M/10 - DILIP PHATAK & ANR. 4 DETAILS DATE INITIALS DESIGNA TION 1. DRAFT DICTATED ON 14-02-2011 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 14-02-2011 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER *