SHRI SUNIL MADHUKAR JOSHI, MUMBAI v. THE ITO WD 26(2)(3), MUMBAI

ITA 2829/MUM/2008 | 2001-2002
Pronouncement Date: 01-02-2010 | Result: Allowed

Appeal Details

RSA Number 282919914 RSA 2008
Assessee PAN ACKPJ3556E
Bench Mumbai
Appeal Number ITA 2829/MUM/2008
Duration Of Justice 1 year(s) 9 month(s) 7 day(s)
Appellant SHRI SUNIL MADHUKAR JOSHI, MUMBAI
Respondent THE ITO WD 26(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 01-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 01-02-2010
Date Of Final Hearing 21-01-2010
Next Hearing Date 21-01-2010
Assessment Year 2001-2002
Appeal Filed On 24-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI RAJENDRA SINGH (AM) ITA NO.2829/MUM/2008 ASSESSMENT YEAR : 2001-02 SHRI SUNIL MADHUKAR JOSHI E-11 INDRAVADAN SOCIETY PADMABHAI THAKKAR ROAD MAHIM MUMBAI-400 016. ..( APPELLANT ) P.A. NO. (ACKPJ 3556 E) VS. INCOME TAX OFFICER WARD 26(2)(3) K.G. MITTAL AAYURVEDIC HOSPITAL BUILDING 6 TH FLOOR CHARNI ROAD MUMBAI-2. ..( RESPONDENT ) APPELLANT BY : SHRI SUNIL MADHUKAR JOSHI RESPONDENT BY : SHR I NAVEEN GUPTA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 23.1.2008 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2001-02 PARTLY SUSTAINING THE PENALTY IMPOSED BY THE ASSESSING OFFICER AMOUNTING TO RS.36 237/- U/S.271(1)(C) OF THE I NCOME TAX ACT 1961 (THE ACT). ITA NO.2829/M/08 A.Y: 01-02 2 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N EMPLOYEE OF M/S. BHARAT PETROLEUM CORPORATION LIMITE D (BPCL) AND FILED HIS RETURN DECLARING AN INCOME OF RS.5 82 165/-. IT WAS OBSERVED BY THE AO THAT IN THE CASE OF BPCL EMPLOYEES IN A FA IRLY LARGE NUMBER OF CASES FILED THE RETURNS OF INCOME AS PER TDS CERTIFICATE (FORM NO.16) AND HAD NOT DISCLOSED THE LEASE RENT AND MAINTENANCE CHARGES RECEIVED DURING THE RELEVANT PREVIOUS YEAR. ON THE OTHER HAND THESE EMPLOYEES CLAIMED INTEREST PAID ON LOAN TAKEN FOR ACQUISITION OF HOUSE PROPERTY AS SELF OCCUPIED PROPERTY AND THEREBY CLA IMING REFUND. ACCORDINGLY BPCL WAS ASKED TO FURNISH INFORMATION ABOUT ALL SUCH EMPLOYEES WHO HAD AVAILED OF SUCH SELF LEASE SCHEME AND HA VING PROPERTY AT MUMBAI AND SUBURBS. THE AO AFTER VERIFICA TION OF THE INFORMATION RECEIVED FROM BPCL FOUND THAT THE ASSESSEE HAS NOT SHOWN RECEIPT OF LEASE RENT ARREARS OF LEASE RENT AND MAINTENANCE CHARGES OF RS.47 520/- RS.53 425/- AND RS.21 384/- RESPE CTIVELY. ACCORDINGLY THE AO ISSUED NOTICE U/S.148 OF THE ACT. IN RESPONSE THE ASSESSEE FILED RETURN DECLARING TOTAL INCOME AT A REVISED FIGURE OF RS.6 67 650/-. HOWEVER THE ASSESSMENT WAS COMPLETED AT A N INCOME OF RS.6 73 390/- INCLUDING THE AFORESAID RECEIPTS VIDE O RDER DATED 29.12.2006 PASSED U/S.143(3) R.W.S 147 OF THE ACT. WHIL E COMPLETING THE ASSESSMENT THE AO ALSO INITIATED PENALTY PROCEEDING U /S.271(1)(C) OF THE ACT. THE AO AFTER CONSIDERING THE ASSESSEES EXPLAN ATION FILED IN ITA NO.2829/M/08 A.Y: 01-02 3 RESPONSE TO SHOW CAUSE NOTICE ISSUED AS TO WHY PENALTY U/S.2 71(1)(C) MAY NOT BE IMPOSED WAS OF THE VIEW THAT THE ASSESSEE HA S NO SATISFACTORY EXPLANATION AND HAS CONCEALED THE INCOME O F RS.1 22 329/- (RS.47 520/- + RS.53 425/- + RS.21 384/- ) AND ACCORDINGLY IMPOSED A PENALTY OF RS.36 237/- VIDE ORDER DATED 26.6.2007 PASSED U/S. 271(1)(C) OF THE ACT. ON APPEAL THE LD. CIT(A) WHILE UPHOLDING THE PENALTY ON THE AMOUNT OF RS.47 5 20/- AND RS.53 425/- DELETED THE PENALTY ON THE AMOUNT OF RS. 21 384/- AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SU STENANCE OF PENALTY BY THE LD. CIT(A). 4. AT THE TIME OF HEARING THE ASSESSEE AT THE OUTSET SUBM ITS THAT ON SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE THE TRIBUNAL IN T HE CASE OF OTHER EMPLOYEE NAMELY SHRI RAVINDRA LAXMAN SATHE VS. ITO IN ITA NO.2828/M/08 FOR ASSESSMENT YEAR 2001-02 VIDE ORDER DT .22.12.09 HAS DELETED THE SIMILAR PENALTY. HE ALSO PLACED ON RECOR D THE COPY OF THE SAID ORDER OF THE TRIBUNAL . HE THEREFORE SUBMITS THAT THE PENALTY SUSTAINED BY THE LD. CIT(A) BE DELETED. 5. ON THE OTHER HAND THE LD. DR SUPPORTS THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A). ITA NO.2829/M/08 A.Y: 01-02 4 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT 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 VIDE FINDING RECORDED IN PARA 4.2 OF ITS ORDER DATED 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 CA SE 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 FOR M 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 PARTICULARL Y WHEN ALL THE RELEVANT PARTICULARS/MATERIAL AVAILABL E 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 ITA NO.2829/M/08 A.Y: 01-02 5 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. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT O N RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL ( SUPRA) HOLD THAT UNDER THE PECULIAR FACTS AND CIRCUMSTANCES THER E IS NO CONCEALMENT ON PART OF THE ASSESSEE AND ACCORDINGLY THE PEN ALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. 7. IN THE RESULT ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED:01.02.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.2829/M/08 A.Y: 01-02 6 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.1.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21.1.10 SR.PS/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/PS 6. KEPT FOR PRONOUNCEMENT ON 01.02.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 03.02.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER