PRAKASH S. PATEL, NAVI MUMBAI v. ITO 26(2)(2), MUMBAI

ITA 3078/MUM/2010 | 2003-2004
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 307819914 RSA 2010
Assessee PAN AAFPP4602G
Bench Mumbai
Appeal Number ITA 3078/MUM/2010
Duration Of Justice 11 month(s) 10 day(s)
Appellant PRAKASH S. PATEL, NAVI MUMBAI
Respondent ITO 26(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-03-2011
Assessment Year 2003-2004
Appeal Filed On 20-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI J SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 3078/MUM/2010 (ASSESSMENT YEAR- 2003-04) PRAKASH S PATIL C-1/1:1 SNEH CHS PLOT NO.16 SECTOR-19A NERUL NAVI MUMBAI-400708 PAN: AAFPP4602G .APPELLANT VS INCOME TAX OFFICER WARD 26(2)(2) MUMBAI. .RESPONDENT ASSESSEE BY : SHRI JAGDISH J M ITHANI REVENUE BY : SHRI HARI GOVIND SINGH O R D E R PER VIJAY PAL RAO THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 16.06.2009 FOR THE ASSES SMENT YEAR 2003-04. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL. HOWEVER THE ONLY ISSUE ARISES FOR OUR CONSIDERATIO N AND ADJUDICATION WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) IS JUSTIFIED IN CONFIRMING THE LE VY OF PENALTY OF RS.42 408/- UNDER SECTIN 271(1)( C ) OF THE ACT . ITA NO. 3078/MUM/2010 (ASSESSMENT YEAR- 2003-04) 2 3. FACTS LEADING TO THIS PENALTY ARE THAT THE ASSE SSEE IS AN EMPLOYEE OF BHARAT PETROLELUM CORPORATION LTD. AFTER SCRUTINY OF THE RETURN THE AO OBSERVED THAT THE A SSESSEE HAD FILED THE RETURN OF INCOME AS PER TDS SALARY CE RTIFICATE IN FORM NO.16 AND HAD NOT DISCLOSED THE LEASE RENT REC EIVED AND MAINTENANCE CHARGES RECEIVED DURING THE PREVIOUS YE ARS. THE ASSESSEE ON THE OTHER HAND CLAIMED INTEREST PAID ON THE LOAN TAKEN FOR ACQUISITION OF HOUSE PROPERTY TREATING TH E RENTED (LEASE) PROPERTY AS SELF OCCUPIED PROPERTY AND CLAI MED REFUND. 3.1 THE AO CALLED DETAILS FORM THE BHARAT PETROLEUM CORPORATION LIMITED. FROM THE DETAILS RECEIVED THE AO OBSERVED THAT THE ASSESSEE HAS NOT SHOWN RECEIPT OF LEASE RENT AND MAINTENANCE CHARGES. THEREFORE AO ISSUED NOTICE U/S 148 TO THE ASSESSEE CALLING UPON THE ASSESSEE T O SHOW CAUSE NOTICE AS TO WHY THIS RECEIPTS SHOULD NOT BE TREATED AS INCOME OF THE ASSESSEE AND NOT TO ADD IN THE TOTAL INCOME OF THE ASSESSEE. IN RESPONSE TO THE NOTICE THE ASSES SEE HAS FILED RETURN. THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND WAS OF THE VIEW THAT THE ASSESSEE HAS CONCEALED THE INCOME AND SUPPRESSED THE MATERIAL FA CT. ITA NO. 3078/MUM/2010 (ASSESSMENT YEAR- 2003-04) 3 3.2 THEREFORE THE AO INVOKING THE PROVISIONS OF S ECTION 271(1)( C ) AND LEVIED THE PENALTY AT THE RATE OF 100% ON THE TAX SOUGHT TO BE EVADED. 4. ON APPEAL THE CIT(A) CONFIRMED THE PENALTY LEVI ED BY THE AO. 5. WE HAVE HEARD THE LEARNED AR AND THE LEARNED DR AND CONSIDERED THE RELEVANT RECORD. THE LEARNED AR OF T HE ASSESSEE HAS SUBMITTED THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE IN RESPECT OF THE OTHER E MPLOYEES OF THE BHARAT PETROLEUM CORPORATION LIMITED THE TRIBU NAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. HE H AS RELIED UPON THE VARIOUS DECISIONS OF THE TRIBUNAL WHEREIN THE PENALTY LEVIED U/S 271(1)( C ) HAS BEEN DELETED. FOR THE S AKE OF BREVITY WE ARE REPRODUCING THE RELEVANT PORTION O F THE ORDER DATED 30.06.2010 IN THE CASE OF SMT. VERONICA J CORREIA V/S ITO 26(2)(1) IN ITA NO.5986 5987 AND 59/MUM/2009 (AY 2002-2003 2003-2004 AND 2004-2005: 3. AT THE TIME OF HEARING LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE RELIED UPON TH E FOLLOWING DECISIONS OF THE ITAT MUMBAI BENCHES IN THE CASE OF OTHER EMPLOYEES O F BPCL WHO WERE SIMILARLY SITUATED WHEREIN PENALTY LEVIED BY THE AO WAS CANCELLED BY THE TRIBUNAL ON THE GROUND THAT NON-DISCLOSURE OF MAINTENANCE CHARGES WAS ON ACCOUNT OF A BONAFIDE MISTAKE AND HENCE PENAL ITA NO. 3078/MUM/2010 (ASSESSMENT YEAR- 2003-04) 4 PROVISIONS UNDER SECTION 271(1)( C ) OF HE ACT ARE NOT APPLICABLE (I) ORDER OF ITAT B BENCH IN THE CASE OF MR. MAKARAND C JOSHI VIDE ITA NO.3522/MUM/2008 DATED 17.9.2009; (II) ORDER OF ITAT D BENCH IN THE CASE OF SHRI RAVINDRA LAXMAN SATHE V/S ITO VIDE ITA NO.2828/MUM/2008 DATED 22.12.2009 4. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIES 5. HAVING REGARD TO THE RIVAL SUBMISSIONS AND CONSISTENT WITH THE VIEW TAKEN BY THE ITAT MUMBAI BENCHES UNDER IDENTICAL CIRCUMSTANCES WE ARE OF TH E VIEW THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALT Y UNDER SECTION 271(1)( C ) OF THE ACT. BY RESPECTFU LLY FOLLOWING THE DECISIONS CITED (SUPRA) WE CANCEL TH E PENALTY LEVIED BY THE AO AND ALLOW THE APPEALS OF THE ASSESSEE 6. IN VIEW OF THE DECISIONS OF THE CO-ORDINATE BENC HES OF THIS TRIBUNAL AND TO MAINTAIN THE CONSISTENCY WITH THE ORDERS OF THIS TRIBUNAL WE DELETE THE PENALTY LEVIED UND ER SECTION 271(1)( C ) OF THE ACT. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2011 SD SD (J.SUDHAKAR REDDY) (V IJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ON THIS 31ST DAY OF MARCH 2011 SRL:29311 ITA NO. 3078/MUM/2010 (ASSESSMENT YEAR- 2003-04) 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI