TAPASYA COOPERATIVE HSG. SOCIETY LTD, MUMBAI v. ITO 22(2)-2, MUMBAI

ITA 3318/MUM/2009 | 2002-2003
Pronouncement Date: 21-04-2010 | Result: Allowed

Appeal Details

RSA Number 331819914 RSA 2009
Assessee PAN AAAAT5426C
Bench Mumbai
Appeal Number ITA 3318/MUM/2009
Duration Of Justice 11 month(s) 2 day(s)
Appellant TAPASYA COOPERATIVE HSG. SOCIETY LTD, MUMBAI
Respondent ITO 22(2)-2, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 21-04-2010
Assessment Year 2002-2003
Appeal Filed On 19-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI. BEFORE SHRI S.V.MEHROTRA AM & SMT ASHA VIJAYRAGHA VAN JM I.T.A. NOS. 3318 TO 3322 /MUM/2009 ASSESSMENT YEARS: 2002-03 TO 2006-07 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD. V. THE I.T. O. 22(2)-2 PLOT NO.66/66A/66B OPP. SHOPPERS STOP MUMBAI. G.M.ROAD CHEMBUR MUMBAI. PA NO.AAAAT5426 C (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI RAHUL HAKANI REVENUE BY : SHRI S.K.MOHAPATRA O R D E R PER BENCH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED A GAINST SEPARATE ORDERS DATED 12.12.2008 OF LD CIT (A)-XXII MUMBAI FOR THE AS SESSMENT YEARS 2002-03 TO 2006-07 RESPECTIVELY. SINCE A COMMON ISSUE IS INVOLVED IN ALL THESE APPEALS THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS SINGLE ORDER F OR THE SAKE OF CONVENIENCE. 2. THE ONLY ISSUE RAISED IN ALL THESE APPEALS IS TH AT LD CIT (A) ERRED IN CONFIRMING PENALTY U/S.271(1)(C) ON RENTAL INCOME RECEIVED BY THE ASSESSEE FROM M/S. BPL MOBILE COMMUNICATION. 3. ALL THESE APPEALS FILED BY THE ASSESSEE ARE TIME BARRED BY 24 DAYS. IN THE PETITION FOR CONDONATION OF DELAY IT IS STATED THAT THE ASS ESSEE HAD RECEIVED THE ORDER OF LD CIT(A) ON 24.2.2009 AND HAD FORWARDED THE RELEVANT PAPERS TO ITS CHARTERED ACCOUNTANT MR PRABODH J.GOLWALA FOR PREPARATION OF GROUNDS OF APP EAL. THE CHARTERED ACCOUNTANT HAD IN TURN FORWARDED THE PAPERS TO A TAX COUNSELS OFF ICE FOR THE SAID PURPOSE. IT IS STATED THAT ON ACCOUNT OF MARCH ENDING WORK THE C.A. COUL D NOT COLLECT THE GROUNDS OF APPEAL I.T.A. NOS. 3318 TO 3322 /MUM/2009 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD 2 WHICH WAS PREPARED BY TAX COUNSEL BY 28.3.2009. ON 13.4.2009 THE TAX COUNSEL AGAIN INFORMED THE CHARTERED ACCOUNTANT TO COLLECT THE PA PERS & ON RECEIVING THE INFORMATION THE CHARTERED ACCOUNTANT INFORMED THE OFFICE OF THE ASSESSEES SOCIETY TO COLLECT THE PAPERS FROM THE COUNSELS OFFICE. SINCE THE ASSESS EE DID NOT HAVE A SPECIFIC PERMANENT PERSON TO LOOK AFTER THE TAX MATTERS THE SOCIETY P ERSONNEL FORGOT TO INFORM THE SECRETARY AND HENCE THE APPEALS PAPERS WERE NOT COLLECTED. ON REMINDER BY THE OFFICE OF TAX COUNSEL THE C.A COLLECTED THE APPEAL PAPERS AND F INALLY APPEALS WERE FILED ON 19.5.2009. THUS IT IS STATED THAT DUE TO ABOVE R EASONS THERE WAS A DELAY OF 24 DAYS. IN SUPPORT OF THIS AN AFFIDAVIT HAS ALSO BEEN FILED. 4. HAVING HEARD BOTH THE SIDES WE ARE OF THE OPINI ON THAT CONSIDERING THE DELAY BEING OF ONLY 24 DAYS WHICH INTER ALIA WAS CAUSED ON ACCOUNT OF CHARTERED ACCOUNT BEING BUSY IN FINALIZATION OF ACCOUNTS DUE TO MARCH ENDING THE ASSESSEE HAD A REASONABLE CAUSE FOR NOT FILING THE APPEALS WITHIN THE STIPULA TED PERIOD. HENCE WE CONDONE THE DELAY AND PROCEED TO DECIDE THE APPEALS ON MERITS. SINCE THE ISSUE INVOLVED IN THE APPEALS IS IDENTICAL WE DISCUSS THE FACTS AS OBTAI NING IN ASSESSMENT YEAR 2002-03 AND THE DECISION WILL BE APPLICABLE FOR ALL OTHER YEARS. 5. FACTS IN BRIEF ARE THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE SOCIETY DECLARING TOTAL INCOME AT RS.510/- AND THE ASSESSME NT WAS COMPLETED AT A TOTAL INCOME OF RS.1 38 025/-. THE AO INITIATED THE PENALTY PROCEE DINGS. IN RESPONSE TO SHOW CAUSE NOTICE THE ASSESSEE REPLIED AS UNDER:- WE HAVE TO REQUEST YOU TO REFER BALANCE SHEET FILED ALONGWITH RETURN OF INCOME F..Y. 2002-03 TO 2006-07. WE HAVE FURTHER TO REQUE ST YOU REFER TO INCOME AND EXPENDITURE ACCOUNT OF THE SOCIETY ACCORDING TO WHI CH WE HAVE SHOWN OTHER INCOME AS UNDER:- RENT RECEIVED 31.3.2002 31.3.2003 31.3.2004 31.3.2005 31.3.2005 1 80 000 1 80 000 1 97 667 2 77 132 2 76 000 THUS THE INCOME (RENT INCOME) WAS SHOWN ALONGWITH R ETURN OF INCOME FILED. HOWEVER DUE TO WRONG ADVISE OF CHARTERED ACCOUNTAN T THE ASSESSEE CLAIMED EXEMPTED INCOME RECEIVED FROM BPL MOBILE COMMUNICAT ION LTD HENCE REFUND OF TDS WERE CLAIMED AND WHICH WERE ALLOWED UPTO A.Y. 2 002-03 TO 2005-06. THUS THERE WAS NO MALAFIED INTENTION TO CONCEAL TH E INCOME BY THE SOCIETY HENCE WE REQUEST YOU TO KINDLY DROP THE PENALTY PROCEEDIN GS INITIATED U/S.271(1)(C). I.T.A. NOS. 3318 TO 3322 /MUM/2009 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD 3 THE ASSESSING OFFICER LEVIED THE PENALTY INTER ALI A OBSERVING THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.1 80 000/- FROM BPL MOBILE COM MUNICATION LTD. AS COMPENSATION FOR KEEPING THEIR TRANSMISSION EQUIPMENT ON A BUILD ING BELONGING TO THE SOCIETY. HE OBSERVED THAT M/S. BPL COMMUNICATION LTD. HAD DEDU CTED TAX FROM THIS PAYMENT MADE TO THE SOCIETY WHICH ITSELF IS AN INDICATION OF THE FACT THAT THE SAID RECEIPT WAS TAXABLE IN THE HANDS OF THE CO-OPERATIVE SOCIETY. HE THEREFO RE CONCLUDED THAT BY CLAIMING REFUND OF TDS THE ASSESSEE HAD CONCEALED THE INCOME AND F URNISHED INACCURATE PARTICULARS OF INCOME. 6. ON APPEAL LD CIT (A) CONFIRMED THE PENALTY. 7. LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A SSESSEE HAD CLAIMED THE INCOME AS EXEMPT ON THE GROUND OF APPLICABILITY OF PRINCIPLE OF MUTUALITY TO THE IMPUGNED SUM. HOWEVER THE SAME HAS BEEN ASSESSED AS INCOME FROM HOUSE PROPERTY. THE ASSESSEE HAD FULLY DISCLOSED THE AMOUNT AND ONLY ASSESSEES CLAI M HAD NOT BEEN ACCEPTED. LD D.R. SUPPORTED THE ORDERS OF THE LOWER REVENUE AUTHORITI ES. 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REC ORD OF THE CASE. WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT V RELIANC E PETROPRODUCTS PVT LTD[2010]322 ITR 158(SC) HELD THAT WHERE THERE IS NO FINDING THA T ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOU S OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). IN THIS CASE THE ASSESSEE HAD RECEIVED THE RENTAL INCOME OF RS.1 80 000/- FROM BPL MOBILE COMMUNICATI ON AND CLAIMED THE INCOME AS EXEMPT ON THE GROUND OF MUTUALITY. THIS CLAIM WAS NOT ACCEPTED AND THE AND THE AMOUNT WAS ASSESSED AS INCOME FROM HOUSE PROPERTY. HOWEVE R THE ASSESSEE HAD FULLY DISCLOSED ALL THE FACTS TO THE DEPARTMENT. FURTHER THE HON BLE SUPREME COURT IN THE CASE OF CEMENT MARKETING CO. OF INDIA LTD V. ACIT 124 ITR 15 (SC) HELD THAT IF THE VIEW CANVASSED ON BEHALF OF THE REVENUE WERE ACCEPTED T HE RESULT WOULD BE THAT EVEN IF THE ASSESSEE RAISES A BONAFIDE CONTENTION THAT A PARTIC ULAR ITEM IS NOT LIABLE TO BE INCLUDED IN THE TAXABLE TURNOVER HE WOULD HAVE TO SHOW IT AS F ORMING PART OF THE TAXABLE TURNOVER IN HIS RETURN AND PAY TAX UPON IT ON PAIN OF BEING HEL D LIABLE FOR PENALTY IN CASE HIS CONTENTION IS ULTIMATELY FOUND BY THE COURT TO BE N OT ACCEPTABLE. THAT SURELY COULD NEVER I.T.A. NOS. 3318 TO 3322 /MUM/2009 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD 4 HAVE BEEN INTENDED BY THE LEGISLATURE. IN VIEW OF T HIS WE SET ASIDE THE ORDER OF LD CIT (A) AND DIRECT THE AO TO DELETE THE PENALTY. 9. IN THE RESULT APPEALS FILED BY THE ASSESSEE STA ND ALLOWED. PRONOUNCED ON 21 ST APRIL 2010 SD/- (ASHA VIJAYRAGHAVAN) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANTMEMBER) MUMBAI DATED 21 ST APRIL 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUMBAI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI I.T.A. NOS. 3318 TO 3322 /MUM/2009 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD 5 DATE INITIALS 1. DRAFT DICTATED ON 15.4.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 19.4.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER I.T.A. NOS. 3318 TO 3322 /MUM/2009 TAPASYA CO-OPERATIVE HSG. SOCIETY LTD 6